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

 ex-GSMFN, USN
Docket No. ND00-00457 

Applicant’s Request

The application for discharge review, received 000223, 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 000918.  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)

The issues that happened with my discharge that I received was as follows:

1.  Problems with family.

2.  Son being born while I was at sea.

3.  Not being frocked to GSM3 after all of my hard work.

4.  I had even sent in request chits to be dishonorably discharged so I could fix my family, and I was turned down.

I have also submitted to you my accomplishments after the service, with these documents they show that I am a professional in my field which I have worked in for years.  Now I would like for you to consider my situation at the time and allow me to be proud of my service and recieve my change of disharge to honorable.

Documentation

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

Copy of DD Form 214
Three pages from applicant's service
Job/character reference from Shoney's Inc. dated April 8, 1996
Job/character reference dated January 28, 1999
Job/character reference dated January 28, 1999
Job/character reference dated February 10, 1999
Job/character reference dated January 29, 1998
Job/character reference, undated
Job/character reference dated March 4, 1998
Job/character reference dated February 3, 1999
Job offer from Jack in the Box dated August 12, 1999
Copy of certificate of completion dated October 27, 1999
Copy of certification for International Food Safety Council dated October 27, 1999
Copy of certificate as Insurance Agent dated March 11, 1994
Copy of certificate of authority dated February 15, 1994
Copy of certificate of recognition dated April 3, 1997
Copy of certificate from Pizza Papa John's, undated
Copy of certificate of completion dated April 18, 1996
Copy of agent's temporary license dated February 18, 1994
Copy of flyer welcoming applicant as new general manager in February 1999

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	910308 - 910331	COG

Period of Service Under Review:

Date of Enlistment:  910401		Date of Discharge:  931026

Length of Service (years, months, days):

	Active:    02  06  26
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  59

Highest Rate:  GSMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (3)	Behavior:  3.67 (3)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  3 

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:

920809:	NJP for violation of UCMJ, Article 86: Unauthorized absence for a period of approximately 3 days; violation of UCMJ Article 92: Failure to obey a lawful order.
	Award:  Restriction and extra duty for 7 days.  No indication of appeal in the record.

920809:	Retention Warning: Advised of deficiency (Conduct prejudicial to good order and discipline as evidenced by CO's Mast held on 9 August 92 for violation of the UCMJ Article 86 - Unauthorized absence and violation of UCMJ Article 92 - Failure to obey lawful order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
930924:	Referral by CAAC for Level III.  Assessment: Psychological alcohol dependence.  Recommendation: Level III.  Applicant not amenable to treatment.  Recommend admin sep.  Applicant states he will refuse treatment.

930927:	Retention Warning: Advised of deficiency (On 24Sep93 LCdr of Naval Medical Hospital Charleston diagnosed you as alcohol dependent and recommended Level III treatment.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
930930:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.

930930:  	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.

930930:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.  Commanding officer’s comments (verbatim): Strongly recommend that member be separated from the naval service at the earliest opportunity with a General Discharge.  The lack of malicious intent and subsequent consequences of GSMFN (applicant's) single NJP offense in his 30 month tour of service does not warrant an Other Than Honorable Discharge.  The reason for this Administrative Separation processing is due to his identified alcohol abuse problem, for which he has elected not to accept rehabilitation treatment. 

931007:	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 931026 under 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).

In response to applicant’s issue’s 1, 2, and 4, the Board found nothing in the records nor did the applicant submit any supporting documentation that showed that his personal problems were of sufficient magnitude that they could not be resolved through standard military channels or by the applicant's chain of command.  Also, as stated on the special request chit, the applicant was not eligible for any early discharge program that the Navy had to offer.  The Board will not grant relief on the basis of this issue.

In response to applicant’s issue 3, when a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by the award of non-judicial punishment (NJP) on one occasion for violation of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included unauthorized absence,  failure to obey a lawful order, alcohol abuse, and alcohol abuse rehabilitation failure. An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (E).  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 provided several letters of recommendation and verification of employment as documentation of his post-service.  The Board was impressed with the efforts he has begun to make in attempting to recoup his reputation which has been sullied by his misconduct in the Navy.  However, the applicant's efforts need to be more encompassing than those provided.  The applicant should have also produced more evidence of continuing educational pursuits, documentation of community service, certification of non-involvement with civil authorities and proof of his not abusing 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 highly 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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for failure to obey a lawful order, 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	 

.