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

ex-AOAN, USN
Docket No. ND00-00393

Applicant’s Request

The application for discharge review, received 000209, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to secretarial authority.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000831.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  I do not believe that I had an impartial hearing prior to my separation.

2.  (Equity Issue) This former member further opines that his narrative reason for discharge, misconduct, is erroneous and warrants amendment to secretarial authority.

3.  (Equity Issue) This former member finally 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.

Documentation

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

Copy of DD Form 214
Character reference dated March 15, 2000 (2 copies)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	920516 - 930110	COG

Period of Service Under Review:

Date of Enlistment:  930111		Date of Discharge:  960412

Length of Service (years, months, days):

	Active:    03  03  02
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  56

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.65 (4)	Behavior:  3.45 (4)		OTA:  3.65	4.0 evals
Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  2.33	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NDSM, SASM (2), SSDR (2)

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

940602:	NJP for violation of UCMJ, Article 86: Failed to go at time prescribed to appointed place of duty on 0715, 23May94.
	Award:  Forfeiture of $200 per month for 2 months, restriction and extra duty for 20 days.  No indication of appeal in the record.

940602:	Retention Warning: Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940729:	NJP for violation of UCMJ, Article 86: Failed to go at time prescribed to appointed place of duty on 9Jul94, violation of UCMJ, Article 134: Incapacitated for duty as a result of previous overindulgence of alcohol on 9Jul94.
	Award:  Forfeiture of $200 per month for 2 months, restriction and extra duty for 20 days, reduction to AOAA.  Forfeiture for 1 month and reduction suspended for 6 months.  No indication of appeal in the record.

940930:	Applicant completed treatment phase of rehabilitation program.

950920:	CAAC Screening: Applicant does not appear dependent on alcohol.  Strongly recommend Level II.

951025:	Drug and/or Alcohol Dependency Screen: Applicant found not dependent.  Recommend CAAC sponsored outpatient group counseling Level 2.

951116:	Civil Conviction: Cajon Municipal Court for violation of driving with a blood alcohol content of .08% or more.
Sentence:  Fined $1560.00 , NADSAP, 2 days jail and probation for five years.

960116:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

960119:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960201:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had failed alcohol rehabilitation, had committed a serious offense and a pattern of misconduct, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

960221:	Commanding officer recommended discharge general (under honorable conditions) by reason of alcohol abuse rehabilitation failure, misconduct due to the commission of a serious offense and a pattern of misconduct. 

960322:	BUPERS directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960412 general (under honorable conditions) for misconduct due to commission of a serious offense (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).

The applicant stated in issue 1 that “I do not believe that I had an impartial hearing prior to my separation.”  The Board found that the applicant had an Administrative Discharge Board that weighed all the evidence and testimony presented.  Although this is a non-decisional issue for the Board, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  Therefore, no relief will be granted based on this issue. 

In the applicant’s issue 2, the applicant was administratively processed for separation for misconduct due to commission of a serious offense, pattern of misconduct and alcohol rehabilitation failure.  The Board found that the applicant had 2 NJPs, a retention warning and a civil conviction and was processed properly for separation.  The applicant’s reason for discharge is not “erroneous” and therefore the Board will not change the reason for separation.  No relief will be granted based on this issue. 

In the applicant’s issue 3, 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 sufficient 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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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