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

 ex-MM3, USN
Docket No. ND00-00917

Applicant’s Request

The application for discharge review, received 000718, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to COG.  The applicant requested a documentary record discharge review.  The applicant listed a civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201.  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, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My enlisted performance record shows that I was 4.0 on my last evaluation dated 95 Sep 01 - 95 Dec 07, which was prior to my civilian conviction.

2.  My civilian conviction was the result of my immaturity and the use of alcohol.

3.  I paid my debt to society for my civilian conviction and therefore my discharge from the Navy with an other than honorable was too harsh.  At a minimum it should have been a general discharge since I performed my naval service without any prior incidents.

4.  Having received a civilian conviction, I should not be further stigmatized and penalized with an other than honorable discharge.

5.  Although I was informed by letter that the least favorable characterization of service I would receive at an administrative separation board would be other than honorable, I was lead to believe by conversation with my command's administrative staff, that based upon my record I should be given a general discharge.  Based upon that information I did not request an administrative separation board.  In addition, I would not have been able to attend a board since I was incarcerated.  I, therefore, was provided with misleading information regarding my rights to an administrative board and because I was unable to attend such a board and present my case I was not afforded adequate due process.  Therefore, an other than honorable characterization of my service is unjust.

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)	921106 - 931017	COG

Period of Service Under Review:

Date of Enlistment:  931018			Date of Discharge:  970314

Length of Service (years, months, days):

	Active:    03  04  27
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  71

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.87 (3)	Behavior:  3.80 (3)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR

Days of Unauthorized Absence:  86  IHCA

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

960917:	Civil Conviction:  Municipal Court of California, County of San Diego, South Bay Judicial District for violation of driving under the influence of alcohol or drugs causing injury, driving with a measurable blood alcohol, hit and run with injury on 14 September 1996.
Sentence: Custody for 180 days, probation for three years, pay restitution, fined $1000.00 (payable by the 180 days in jail), volunteer work for 40 hours, to include community service work in support of educating young adults on drinking and driving. Sentenced December 11, 1996.

970206:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970206:  	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.

970212:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments: (verbatim):  Documentation supports that member was arrested for driving under the influence on 15 September 1996.  BT3 (applicant) did not wish to file an appeal and waived his rights to an administrative separation board.  Command does not concur with servicemember's actions.  Administrative separation was necessary for good order and discipline.

970227:	BUPERS directed the applicant's discharge under other than 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 970314 under other than 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).

In the applicant’s issue 1, the Board found that the applicant’s misconduct consisting of a civilian conviction of Driving Under the Influence and hit and run with serious injury to a 10 year old boy outweighed the positive aspects of Naval service and therefore were deserving of a characterization under other than honorable conditions.  Relief denied.

In the applicant’s issue 2, the applicant states that “my civilian conviction was the result of my immaturity and the use of alcohol.”  Although the Board agrees that this may be the case, 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.

In the applicant’s issue 3, the Board found that the applicant was convicted of a DUI and hit and run, with injury.  The applicant was sentenced to jail for 180 days, probation for three years, pay restitution, fined $1000.00 (payable by the 180 days in jail), volunteer work for 40 hours, to include community service work in support of educating young adults on drinking and driving.  The applicant states that the discharge should have been a general since he performed without any prior incidents.  The Board finds that the discharge is equitable and the applicant is deserving of a characterization under other than honorable conditions.  The applicant hit and severely injured a 10 year old boy and fled the scene of the crime.  The Board does not agree that the characterization is “too harsh.”  The applicant is responsible for his actions and the consequences of those actions.  Relief is denied.

In the applicant’s issue 4, the Board found that the applicant was properly discharged for misconduct due to civilian conviction, which is not considered a penalty, but rather a result of the applicant himself, violating the UCMJ, which is a military member’s duty to follow, 24 hours a day, 7 days a week.  No relief will be granted based on this issue. 

In the applicant’s issue 5, the applicant was notified and waived his rights on 970206.  The applicant was properly advised that the least favorable characterization would be under other than honorable conditions.  Relief is not warranted based on 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 (D).  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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL 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 111, drunken driving 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