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

 ex-BM2, USN
Docket No. ND01-00802

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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011214.  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 1910 - 142 (formerly 3630605).  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I (applicant) would like to have my discharge change to a Honorable because I feel that I didn't have a chance to prove myself as a sailor that didn't deserver a other than honorable because the Navy didn't give me any of the right program that could have help my illness that I was going though doing the my of my service period.

Documentation

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

Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		800413 - 860212	HON
		   USN			860213 - 900426	HON
		   USN			900427 - 921025	HON
		   USN			921026 - 960905	HON
	Inactive: USNR (DEP)	800305 - 800413	COG

Period of Service Under Review:

Date of Enlistment:  960906		Date of Discharge:  980418

Length of Service (years, months, days):

	Active:    01  07  13
	Inactive:  None

Age at Entry:  39			Years Contracted:  2

Education Level:  12			AFQT:  33

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.29

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (4), GCM (4), NDSM, SASM w/Bronze Star, BER, MUC

Days of Unauthorized Absence:  102

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

980402:	Civil Conviction:  General District Court, Traffic Division, Virginia Beach, VA for violation of driving under the influence (3rd offense) and refusal to permit a sample of blood or breath to be taken to determine drug/alcohol content on 17Aug97.
Sentence:  Not listed.

971204:	Applicant to unauthorized absence 0730, 4Dec97, IHCA

971222:	Applicant from unauthorized absence 1115, 12Dec97 (18 days/surrendered).  Civil charges pending.

971222:	Civil Conviction:  General District Court, Traffic Division, Virginia Beach, VA for violation of driving under the influence (4th offense), and refusal to permit a sample of blood or breath to be taken to determine drug/alcohol content on 1Nov97.
Sentence:  Fine $125.00, jail for 12 months, one year suspension of driver's license.  All suspended.

971222:	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 misconduct due to civil conviction.

971231:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980123:	Applicant IHCA, 1100, 23Jan98.

980224:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and civil conviction, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

980312:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to civil conviction.  Commanding officer’s comments (verbatim): BM2 (applicant) is currently in a Virginia Beach Jail awaiting trial for two separate offenses of DUI.  BM2 (applicant's) first incident of driving under the influence (DUI) was in September 1993.  He attended PREVENT which is a 40 hour life awareness course that covers various topics, including responsible alcohol use.  After his second DUI in March of 1995, he attended IMPACT which is an early intervention program with intensive 20 hour educational course on alcoholism, alcohol abuse and responsible use.
	The third, fourth and fifth DUI incidents all occurred within a five month period.  The evidence is clear in this case and supports immediate separation in absentia.  BM2 (applicant's) conduct is a substantial failure to judgment, behavior and leadership.  He is a threat to himself as well as others when he gets behind the wheel.  His behavior is deplorable and contrary to good order and discipline.  Therefore, I concur with the Administrative Board's recommendation that BM2 (applicant) be separated in absentia from the Navy with an Other Than Honorable Discharge.

980324:	Commander, Naval Base, Norfolk directed the applicant's discharge general under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980410:	Civil Conviction:  General District Court, Traffic Division, Virginia Beach, VA for violation of driving under the influence (5th offense), refusal to permit a sample of blood or breath to be taken to determine drug/alcohol content, and disregard red light on 2Dec97.
Sentence:  Not listed.

980417:	Applicant administratively returned to military control 2400, 17Apri98.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980418, in absentia, 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 NDRB considered the applicant’s entire service record and found the other than honorable discharge accurately characterizes the applicant’s service.  The applicant had five seperate incidents of driving under the influence.  Clearly the negative aspects of service outweigh the positive.  Relief is denied. 

The following is provided for the benefit of the applicant.  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, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He 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 is denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION 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