DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 
 ex-AMEAA, USN
Docket No. ND00-00071

Applicant’s Request

The application for discharge review, received 991019, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000616.  After a thorough review of the records, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I got into a fight with an Chief Petty Officer because he was talking bad about my family.  He was drunk.  I know that other than this there is nothing else negative in my file.  I was punished for what I did.  I was in CCU they took money and a stripe from me.  I was there for 90 days.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	820628 - 830102	COG

Period of Service Under Review:

Date of Enlistment:  830103		Date of Discharge:  850830

Length of Service (years, months, days):

	Active:    02  07  28
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12 GED		AFQT:  23

Highest Rate:  AMEAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.07 (3)	Behavior:  2.80 (3)		OTA:  3.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  36 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern – frequent involvement of a discreditable nature with civil or military authorities, authority: NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

831024:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 0700, 11Oct83 until 0700, 19Oct83 (8 days/surrendered).
	Award:  Forfeiture of $200 per month for 2 months, correctional custody for 30 days, reduction to E-1.  Reduction suspended for 4 months.  No indication of appeal in the record.

840924:	Retention Warning from Attack Squadron Forty-Two Naval Air Station Oceana, Virginia Beach, VA: Advised of deficiency (Frequent involvement with military authorities, unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 	    

850117:	Civil court [General District Court, Traffic Division, Virginia Beach] for violation of driving under the influence.
	Sentence: Fined $250.00, plus court cost, license suspended for 6 months, jail for 30 days.  Jail suspended for 1 year.

850612:	Civil court [General District Court, Traffic Division, Virginia Beach] for violation of driving under the influence.
	Sentence: Fined $250.00, plus court cost, license suspended for 6 months (restricted to and from work and ASAP), jail for 30 days.  Jail suspended for 1 year.

850805:	NJP for violation of UCMJ, Article 112: Drinking in a duty status on 1Jun86, violation of UCMJ Article 86 (5 specs): (1) Unauthorized absence from 0800-0900, 1Jun86, (2) Absent from appointed place of duty 200, 15Jun86, to wit: BEQ 536 FM 204 NASO for room and seabag inspection, (3) Unauthorized absence 0800, 1Jul86 until 0910, 29Jul85 (28 days), (4) Unauthorized absence 0700-0850, 30Jul85, (5) Unauthorized absence 0700-0800, 31Jul85.
	Award:  Forfeiture of $347 per month for 2 months, restriction and extra duty for 30 days, reduction to AMEAA.  No indication of appeal in the record.

850806:	Naval Air Stations Oceana, Attack Squadron FORTY-TWO, Virginia Beach notified applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct- pattern – frequent involvement of a discreditable nature with civil or military authorities and alcohol rehabilitation failure.

850807:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

850808:	Drug/Alcohol Abuse Report: Alcohol abuse, one to three times per week, Sept83 to present, ashore on and off duty. Civilian authorities May 1985.  CAAC found applicant not dependent and recommended Level II treatment.  Separate SAC/NASAP/NDSAP/CAAC evaluation found applicant not dependent and recommended separate not via VA hospital.  Commanding officer recommended separation.  Comments: Applicant has no potential for further naval service.  Command processing for administrative discharge.  NJP: 831024 - Art 86 - awarded $200 x 2 mo, R in R, CCU x 30da; 850805 - Art 86 x 5, Art 112 - awarded $347 x 2 mo, R in R, rest/ED x 30 da.  Civil convictions 850117 - DUI, 860805 - DUI, Civil arrests: 8500601 - DUI, pending court appearance.  Treatment history: Sep 83 - Level I - failed to complete due to misconduct (Art 86); July 85 - Level II - failed to complete due to misconduct (Art 86).  Applicant declined any further treatment.

850809:	Commanding officer recommended discharge as warranted by his service record by reason of misconduct – pattern - frequent involvement of a discreditable nature with civil or military authorities and alcohol rehabilitation failure. 

850824:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct - pattern – frequent involvement of a discreditable nature with civil or military authorities.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 850830 under other than honorable conditions for misconduct pattern frequent involvement of a discreditable nature with civil or military authorities (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to applicant’s issue 1, the Board found that the applicant overlooked several violations of UCMJ Article 86 (unauthorized absence), violation of UCMJ Article 112 (drinking in a duty status) and two civil court convictions for driving under the influence.  The Board also found that the punishment of any service member was then, and is now, a legitimate function of command judgement and prerogative.  Furthermore, the applicant has failed to substantiate how the alleged misconduct of another service member could excuse his own misconduct.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560, Change 10/84, effective 
17 Sep 84 until 15 Dec 85), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112, for drinking in a duty staus, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023