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

 ex-HM3, USN
 Docket No. ND00-00365

Applicant’s Request

The application for discharge review, received 000202, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010209.  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: OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) His UCMJ, violation notwithstanding, this former member opines that his overall service record supports release under honorable conditions.

2.  (Equity Issue) This former member further requests that the Board include provision of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		870413 - 930603	HON
	Inactive: USNR (DEP)	870325 - 870412	COG

Period of Service Under Review:

Date of Enlistment:  930604		Date of Discharge:  980602

Length of Service (years, months, days):

	Active:    04  11  28
	Inactive:  None

Age at Entry:  21			Years Contracted:  6 

Education Level:  13			AFQT:  62

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.73 (3)	Behavior:  3.73 (3)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  KLM, KLM(K), CAR, SASM(2), SSDR, Navy Pistol Sharpshooter Ribbon, NDSM, NFMFR, Navy Rifle Sharpshooter Ribbon, NMCAM, GCA 

Days of Unauthorized Absence:  None 

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

OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

930604:	Reenlisted at NSHS SAN DIEGO, CA for 6 years.

941123:	NJP for violation of UCMJ, Article 86: UA from 0730, 940803 to 1937, 940804, violation of UCMJ Article 108: Destruction of government property on 940822, violation of UCMJ Article 111: Drunk driving 940327, violation of the UCMJ, Article 134: Communicating a threat 940820.
	Award:  Forfeiture of $644.00 per month for 2 months (suspended for 6 months), restriction for 45 days (suspended for 6 months), extra duty for 45 days, reduction to HM3.  No indication of appeal in the record.

950622:	Completed Level II program for ETOH Abuse.

951220:	Completed CAAC Aftercare Group.

970117:	Arrived to an MMART meeting with strong ETOH odor on breath, additionally 45 minutes late, arrived with earring in his ear in military uniform, escorted to E.R. BAC revealed an ETOH level of 130 MG/DL, additional substance results were negative [Extracted from CDAPA, National Naval Medical Center Memorandum dtd 970827].

970124:	CAAC alcohol evaluation indicates applicant appear to meet the diagnostic criteria for alcohol dependency, this assessment concurs with a medical officer screening conducted at National Naval Medical Center (NNMC), Bethesda on 970127, in which was diagnosed as having "physical/psychological alcohol dependency" and recommended for Level III (ARD) treatment.
 
970211:	NJP for violation of UCMJ, Article 134: Drunkenness incapacity for performance of duties through prior wrongful indulgence in intoxicating liquor.
	Award:  Forfeiture of $100.00 per month for 2 months, extra duty for 30 days, reduction to HN (suspended for 6 months).  No indication of appeal in the record.

970327:	Medical Statement from Command DAPA indicates applicant was diagnosed as alcohol dependence with physiological dependence, in early full remission, in a controlled environment medical officer.

970820:	Civil Action: Arrested by State of Maryland, Ocean City County Police Department for DWI with a BAC .20.

970822:	Applicant diagnosed as alcohol dependent by medical officer [Extracted from CDAPA, National Naval Medical Center Memorandum dtd 970827]

980522:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your nonjudicial punishment on 941123 for violation of the UCMJ, Article 108, destruction of government property; Article 111, drunken operation of a vehicle; and Article 134, communicating a threat; and by reason of alcohol abuse rehabilitation failure as evidenced by an alcohol related incident following completion of a Level III rehabilitation treatment.

980522:  	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.

980609:	Commander, National Naval Medical Center recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 980602 other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The applicant’s representative submitted the following as issue 1: “(Equity Issue) His UCMJ, violation notwithstanding, this former member opines that his overall service record supports release under honorable conditions.”  The Board found that during his most recent enlistment, the applicant violated UCMJ Article 86 (unauthorized absence), Article 108 (destruction of government property), Article 111 (drunk driving), and two violations of Article 134 (communicating a threat and incapacitated for duty).  Even though all of these violations stem from the applicant’s use of alcohol, the Board does not accept alcohol abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct.  While the Board recognizes that Alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions.  They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment.

The applicant’s representative submitted the following as issue 2: “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.”  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered.  The applicant did not provide any documentation of his post-service.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using alcohol in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He 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.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 108, for destruction of government property, 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