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

 ex-MMFN, USN
Docket No. ND00-00083 

Applicant’s Request

The application for discharge review, received 991019, requested that the characterization of service on the discharge be changed to honorable.  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 000713.  After a thorough review of the records, supporting documents, 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 - Convicted by a civil court for offense(s) occurring during current term of military service , authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge is inequitable because it was based on two driving offenses that occurred less than a few months after my divorce that caused an adverse representation in my successful 7 year 4 month naval service.  Since my departure from naval service (7 year 6 months) no driving offenses have ever occurred.

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:   USN 		841114 - 880227	HON
	Inactive: USNR (DEP)	840608 - 841113	COG

Period of Service Under Review:

Date of Enlistment:  880228		Date of Discharge:  920313

Length of Service (years, months, days):

	Active:    04  00  16
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  12			AFQT:  84/85

Highest Rate:  MM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (6)	Behavior:  3.67 (7)		OTA:  3.83

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, BEA, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct-Convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910910:	Civil Conviction for violation of driving with ability impaired.
Sentence:  Fined $250.00

910911:	Retention Warning: Advised of deficiency (DWAI conviction.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
 
920108:	Alcohol Abuse Evaluation: Alcohol dependent.   Recommend Level II with a minimum of 2 AA meetings weekly until it convenes.

920109:	Civil Conviction for violation of driving while intoxicated on 22Dec91.
Sentence:  Fined $435.00, license revoked for 6 months.

920110:	Drug and Alcohol Abuse Report:  Alcohol abuse, 1 to 3 times per week, ashore off duty, 23Dec91, civilian police.  CAAC and physician found applicant dependent and recommended Level III treatment.  Commanding officer recommended separate from service not via VA hospital.  Comments:  Petty Officer (applicant) exhibits no potential for future useful naval service.  This offense, arrested for DWI on 12/23/91, BAC .24, convicted DWI 1/9/92, fined $435.00, license revoked for 6 months.  He will be offered the assistance of VA Rehab upon separation.
	
920131:	CAAC found applicant psychologically dependent on alcohol.  Recommend Level III inpatient treatment.

920203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by your two civilian convictions.

920205:  	Applicant advised of his rights and having elected not to consult 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.

920210:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by two civilian conviction.  Commanding officer’s comments (verbatim):  Petty Officer (applicant) was evaluated by CAAC New London on 31 December 1991, as being psychologically dependent on alcohol and likely to abuse alcohol in the future.  Petty Officer (applicant) exhibits no potential for further naval service and accordingly is not recommended for Level III treatment. He will be offered the assistance of VA Rehabilitation upon separation.
	Despite participation in a NADSAP program and command counseling, his two convictions within a four month period indicate an abusive pattern in the use of alcohol, demonstrating unreliability and unsuitability for future service.
	It is strongly recommended that Petty Officer (applicant) be separated from the naval service due to a pattern of misconduct, based upon his two civilian convictions, and that he receive a General Discharge under Other than Honorable conditions.

920227:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 920313 under other than honorable conditions for misconduct due to civil conviction (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In the applicants issue, he states “my discharge is inequitable because it was based on two driving offenses that occurred less than a few months after my divorce, that caused an adverse representation in my successful 7 year 4 month naval service”.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed multiple civil convictions.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military. The applicant is reminded that drunken driving could have resulted in a Bad Conduct Discharge.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge.  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge. 

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT. 

B.  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.  

C.  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.

D.  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