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

 ex-ATAN, USN
Docket No. ND00-00981

Applicant’s Request

The application for discharge review, received 000816, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing before a traveling board closest to Seattle, WA.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010215.  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 3 to 2 that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Undesirable/Under Other Than Honorable Conditions Discharge for driving under the influence of alcohol.

Documentation

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

Copy of DD Form 214
Statement from applicant dated August 10, 2000
Letter from Swedish Medical Center re completion of alcohol dependency treatment dated July 23, 1996
Character reference dated July 18, 1996
Character reference from applicant's mother dated July 1996

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	901016 - 910218	COG

Period of Service Under Review:

Date of Enlistment:  910219		Date of Discharge:  940608

Length of Service (years, months, days):

	Active:    03  03  20
	Inactive:  None

Age at Entry:  21			Years Contracted:  4

Education Level:  10 GED		AFQT:  75

Highest Rate:  AT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (3)	Behavior:  3.53 (3)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

911025:	Applicant completed Level II.

930715:	Applicant arrested for driving while under the influence in Oak Harbor, WA.  Civil jurisdiction assumed by District Court of Oak Harbor.  Applicant received a "delayed prosecution" through civil court which involves a two year "probationary" period prior to acquittal or conviction determination being made.

930725:	Drug/Alcohol Medical Evaluation: Applicant meets the DSM-III-R criteria for psyco-active substance dependence.  Recommend Alcoholic Anonymous 3 times per week and Level III.  Comments: Applicant does not feel he would benefit from Level III treatment.  He does recognize problem and is going to AA meetings which he feels is enough.  Given applicant's attitude I believe he may not benefit from Level III treatment although it is strongly advised that he go through it.  I recommend Administrative separation with VA follow up if applicant agrees.

940407:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure and misconduct due to the commission of a serious offense.

940413:  	Applicant advised of his rights and having consulted 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.

940415:	Commanding officer recommended discharge general (under honorable conditions) by reason of alcohol rehabilitation failure and misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): AT3 (applicant) is unfit for further military service primarily due to his continued abuse of alcohol following successful completion of Level II rehabilitation treatment.  He has been provided extensive counseling and assistance from his division officer and others, and was offered the opportunity to attend Level III rehabilitation.  He has not responded to counseling and refused to attend Level III and so appears unable to admit to or resolve his problems concerning alcohol abuse.  The most appropriate service characterization in this case is General for the following reasons.

	It appears that the majority of AT3 (applicant's) problems are directly related to alcohol abuse.  Although technically the drunk driving is a serious offense, this incident did not involve an accident nor did it result in any injury.  Also, a BAC of .12% is not significantly in excess of the legal limit.  Prior to this incident he has been a top performer, loyal to his command and the Navy.  Other than the drunk driving arrest (for which Oak Harbor District Court has assigned "delayed prosecution"), he has not had any civilian or military convictions.

	In considering AT3 (applicant's) absence of serious disciplinary problems prior to his drunk driving arrest, and his good performance record, I strongly recommend he be discharged with a characterization of service as General.

940531:	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 940608 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).

The Board found that the applicant attended and completed a Level II substance abuse program on 911025.  The applicant was later arrested for driving under the influence on 930715 and received a delayed prosecution.  The applicant refused Level III alcohol treatment and so administrative discharge proceedings were started to separate the member based on Alcohol Rehabilitation failure and Commission of a serious Offense.
The Board found the applicant was properly and equitably discharged from the Navy.  The applicant’s issue 1 is a non decisional issue for the Board.  

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. recommended.  The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol and drug free lifestyle.  Verifiable documentation of such a lifestyle is essential.  The applicant is encouraged to continue his community service, remain sober, and apply for a personal appearance hearing prior to June 8, 2009.  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 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.  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