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

ex-DS3, USN
Docket No. ND01-00791

Applicant’s Request

The application for discharge review, received 010522, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020110.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his overall service record is sufficient to warrant release under honorable conditions.

2.  (equity Issue) This former member further requests that the Board apply provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Applicant's Statement to the Board (3 pages)
Copy of DD Form 214
Certification of Military Service issued on Apr 19, 2000
Applicant's Enlistment contract (DD Form 4) (2 pages)
Applicant's Record of Military Processing (DD Form 1966) (2 pages)
Army National National Guard Request for Waiver package dtd 18 Jul 00 (4 pages)
Police Check (S_, SC) dtd Aug 17, 1998
Police Check Seneca Police Dept dtd 27 Jul 98
Police Check Clemson Police Dept dtd 29 Jul 98
University of Louisiana transcript Fall 2000/Spring 2001 (5 pages)
Character Reference ltr from S_ U_, neighbor, dtd May 16, 2001
Letter of Employment, Schlafhorst, dtd August 14, 1998
Letter of Commendation from W.I.N. dtd Aug 13, 1998
Character Reference undtd ltr from T_ D_
Character Reference ltr from D_ J. T_ dtd May 7, 2001
Character Reference ltr from R_ H_ dtd May 7, 2001
Character Reference ltr from C_ H_ dtd Aug 2, 1998
Character Reference ltr from C_ & D_ C_ dtd Aug 5, 1998
Character Reference ltr from T.C. S_ dtd July 29, 1998
AT&T Family Federal Credit Union ltr dtd Aug 6, 1998
Character Reference ltr from B_ B_ dtd Aug 10, 1998
Character Reference ltr from R_ G_ dtd Aug 1, 1998
Character Reference ltr (ERA Central Real Estate) fromG_ S. I_ dtd Aug 10, 1998
Administrative Discharge Board Questionnaire (3 different questionnaires)
Character Information Sheet Administrative Board (5 different character sheets)
Applicant's ltr to Mr. S_ (AL) dtd July 17, 2001
Letter from applicant's Grandmother dtd Jul 5, 2001
Letter from applicant's spouse dtd June 30, 2001
Letter from applicant's father dtd July 2, 2001
Letter from applicant's mother dtd July 1, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	880915 - 890604	COG

Period of Service Under Review:

Date of Enlistment:  890605		Date of Discharge:  921228

Length of Service (years, months, days):

	Active:    03  06  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  82

Highest Rate:  DS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.33 (3)		OTA:  3.58

Military Decorations:  None

Unit/Campaign/Service Awards:  JMUM, NDSM, SWASM 

Days of Unauthorized Absence:  4 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900803:	NJP for violation of UCMJ, Article 81:  conspiracy, fleeing the scene of an accident; violation of UCMJ Article 134:  fleeing the scene of an accident; violation of UCMJ Article 134: underage drinking.
	Award:  Forfeiture of $430 per month for 2 months (suspended for 6 mos), restriction and extra duty for 45 days, reduction to E-3 (suspended for 6 mos).  No indication of appeal in the record.

901212:	Retention Warning:  Advised of deficiency (underage drinking and fleeing scene of an accident), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

901221:	CO's NJP of 90AUG03 vacated due to continued misconduct.

901221:	NJP for violation of UCMJ, Article 86:  unauthorized absence; violation of UCMJ Article 92:  failure to obey order or regulation; violation of UCMJ Article 107:  false official statement.
	Award:  Oral admonition.  No indication of appeal in the record.

920622:	Admitted to Alcohol Rehabilitation Dept, Naval Hospital Oakland for treatment of alcoholism. Pt previously received Level II treatment at Treasure Island but resumed drinking six months afterwards.  After four weeks and two days of treatment, a Staff conference agreed that maximum benefits of treatment had been reached and that he is to be discharged due to sabotaging himself during treatment and having a disruptive effect on the rest of pt population as well as for failure to comply with the treatment plan.  He was thus considered non-amenable to treatment at this time.
	Discharged Diagnoses:  Alcohol Dependence, continuous, EPTE
				   Drug abuse, Marijuana, EPTE, in remission
				   Cigarette Addition, continuous
				   Alcohol Rehabilitation therapy.

920722:	Discharged from Level III Treatment as having unsuccessfully completed treatment.

920909:	NJP for violation of UCMJ, Article 92:  violation of a lawful written regulation.
	Award:  Forfeiture of $200 per month for 2 months.  No indication of appeal in the record.

921015:	Assistant Legal Officer's memo to Combat Systems Dept Hd advised applicant being administratively processed for discharge from the naval service due to Alcohol Rehab Failure and by commission of serious offenses.

921101:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, by a pattern of misconduct and by alcohol abuse rehabilitation failure.

921101:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921102:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, warrants discharge and by a vote of 2 to 1 recommended member receive an Other Than Honorable discharge ; by unanimous vote, found he had committed alcohol rehabilitation failure, warrants discharge; and by unanimous vote, found he had committed misconduct as evidenced by a pattern of misconduct, warrants discharge and by vote of 2 to 1 recommend the member receive an Other Than Honorable discharge.

921112:	Drug/Alcohol Screening:  Not drug dependent, but alcohol dependent.  Applicant enrolled to attend Level III 4 week twice day when he decided he was not an alcoholic.

921125:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by alcohol rehabilitation failure.  Commanding officer’s comments (verbatim):  "Petty Officer (Applicant) reported to this command on 11 April 1991 with a history of alcohol and disciplinary problems.  He was given an opportunity to improve himself and he failed.  Petty Officer (Applicant) did not believe in the Level III program and, thus, did not participate.  When working, Petty Officer (Applicant) was an above average worker but when on liberty, he has faltered time and time again.  I concur with the recommendation of the Administrative Board and strongly recommend that Petty Officer (Applicant) be discharged from the naval service with an Other Than Honorable discharge."

921216:	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 921228 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).

Issue 1.  Under other than 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 award of nonjudicial punishment (NJP) for offenses triable by court-martial on three occasions and adverse counseling entries on other occasions.  The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.

Issue 2.  The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs (more recent than those provided), are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  Although the applicant provided several of the documents listed above to support an upgrade based on post-service, the Board determined the applicant’s post-service conduct was insufficient to overcome the misconduct for which he was discharged.  The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. 

 The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, 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 "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