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

ex-MSSR, USN
Docket No. ND01-00230

Applicant’s Request

The application for discharge review, received 001218, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before a traveling panel.  The applicant listed Veterans of Foreign Wars as his 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 Naval Discharge Review Board (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 010817.  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 - Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  This office, acting as counsel, has reviewed the naval records of the above named applicant and respectfully submits them for consideration in accordance with Department of Defense Directive Number 1332.28 E4.3 EQUITY In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in subparagraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Area of consideration include, but are not limited to: E4.3.1.11 CONVICTIONS BY COURT MARTIAL.

Documentation

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

Power of Attorney Letter from VFW
Copies of DD Form 214 (2)
Resume
Service Related Documents (37pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			820518 - 860215	HON
	Inactive: USNR (DEP)	820305 - 820517	COG

Period of Service Under Review:

Date of Enlistment:  860216		Date of Discharge:  871106

Length of Service (years, months, days):

	Active:    01  08  21
	Inactive:  None

Age at Entry:  36			Years Contracted:  5 

Education Level:  11			AFQT:  34

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (4)	Behavior:  3.05 (4)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards: SSDR (2ND) 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

860216:	Reenlisted onboard USS CARL VINSON (CVN-70) for 5 years.

860314:	Retention Warning from [You committed one or more offenses against the UCMJ, or you have been convicted of (an) offenses (s) by a civil court].  Advised of deficiency (UA, failed to obey lawful order, etc.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

860314:	NJP for violation of UCMJ, Article 113:Sleeping upon post as a security lookout for pier watch on 860216.
	Award:  Forfeiture of $100.00 per month for 1 month (suspended for 6 months), restriction for 10 days, reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

860612:	Retention Warning from [Naval Station Mare Island, Vallejo, California]:  Advised of deficiency (Commanding Officer's NJP on board the USS CARL VINSON 9CVN-70) for sleeping on watch.  Additionally, you were counseled regarding disrespectful, argumentative and questioning behavior toward superiors as evidenced by Enlisted Performance Evaluation Report (NAVPERS 1616/24) for the period of 850701 through 860501), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

860923:	Retention Warning from [Naval Station Mare Island, Vallejo, California]:  Advised of deficiency ((a) On 860801, based upon the statements of witnesses, you were believed to have been drunk at NADSAP class you were attending.  This conclusion is supported by the following facts: (1) You smelled of alcohol; (2) You were argumentative and disruptive of the class; (3) You initiated and argument with a first class petty officer; and (4) Your roommate stated that you consumed over one-half of a bottle of hard liquor the evening of 31 July and morning of 1 August  (b) On 860824 you committed the following offenses: (1) You were drunk and disorderly at the Naval Station, Mare Island Barracks. (2) You committed an assault with a deadly weapon upon your roommate by confronting him with a knife and threatening to cut him with that knife), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870113:	NJP for violation of UCMJ, Article 128: Assault, violation of UCMJ Article 134: (2 Specifications), Disorderly conduct, drunkenness.
	Award:  Forfeiture of $50.00 per month for 2 months, extra duty for 30 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

870731:	NJP for violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer on or about 870715, violation of UCMJ Article 91: Insubordinate conduct toward a petty officer on or about 870715.
Award:  CCU for 30 days, forfeiture of $400.00 per month for 1 month, reduction to E-3.  No indication of appeal in the record.

870818:	Retention Warning from [Naval Station Mare Island, Vallejo, California]:  Advised of deficiency (CO's NJP on 870731 for disrespect toward a superior commissioned officer; and disrespect to a superior petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

871002:	NJP for violation of UCMJ, Article 86: (2 Specifications), Spec 1: UA from 0715, 870909 to 0845, 870909, Spec 2: Failure to go to appointed place of duty, violation of UCMJ Article 134: Drunk and disorderly.
Award:  Forfeiture of $369.00 per month for 2 months (1 month suspended), restriction for 15 days, reduction to E-2.  No indication of appeal in the record.

871006:	[Naval Station Mare Island, Vallejo, California] notified applicant of intended recommendation for discharge under other than honorable conditions by reason of alcohol rehabilitation failure, misconduct due to a pattern of misconduct and misconduct due to commission of a serious military offense as evidenced by his service record and other document. 

871006:  	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.

871008:	CAAC evaluation states applicant is an alcohol abuser who appears to be psychologically dependent on alcohol.  He has been screened at CAAC, Mare Island on two previous occasions.  On 870807, MSSA J____ was screened after being dropped from NADSAP for being drunk and disorderly.  He was found dependent on alcohol, but not amenable to a formalized treatment program.  On 861112, MSSA J____ was again screened after being disenrolled from CAAC Level II, because of alcohol on his breath, again, he was found psychologically dependent on alcohol and recommended for ARC/S Level III, inpatient treatment program.  MSSA J_____ was assigned an aftercare regimen as part of his rehabilitative program and recovery, as outlined in Ref A.  He, however, has self-admitted to drinking alcohol while on aftercare; unwilling to continue his antabuse as prescribed by medical and has failed to attend alcoholics anonymous meetings as a local support group.  MSSA J____ has not followed his aftercare regimen and is considered a personal rehabilitation failure as outlined in paragraph 6, enclosure 8 of OPNAVINST 5350.4A.  He is determined to be not amenable to and ineligible of any other drug or alcohol abuse program intervention due to his misconduct. 

871014:	Commanding officer recommended discharge under other than honorable conditions by reason of alcohol rehabilitation failure, misconduct due to a pattern of misconduct and misconduct due to commission of a serious military offense as evidenced by his service record and other document.  

871020:	Suspended punishment of $369.00 pay per month for 1 month, awarded at CO's NJP of 871002 is hereby vacated due to continued misconduct.
  
871024:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 871106 under other than honorable conditions for misconduct due to a pattern of misconduct (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’s record demonstrates a significant pattern of willful disobedience of rules and regulations while on active duty.  In one year, and eight months of active service, the applicant had four NJP’s.  The record further shows a dedicated effort to counsel and guide the applicant.  The applicant’s Other Than Honorable Characterization accurately describes the applicant’s service.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, effective 870615 - 890110), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

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 “afls10.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