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

 ex-HTFN, USN
Docket No. ND02-00325

Applicant’s Request

The application for discharge review, received 020128, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  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 020912.  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, as submitted

1.  I feel that my discharge was unjust because of the incident that led to my separation was never properly reviewed.  On this particular night myself & some guys from my ship ( USS ACADIA) rented a car & went out on the town, Honolulu, Hi, we had a designated driver but later that night he was fighting with one of the passengers.  The passenger got upset & left the car at a stop sign.  He threatened to jump in the cove so leaving the car in the middle of the street, everyone went after him.  I stayed by the car.  I was standing outside the rear passenger door on the driver side when a meter maid style police car pulled up & told me to move the vehicle out of the middle of the street.  He took off and went around the corner.  Thinking nothing of the request I moved the car about 10 feet & parked it on the curb.  A police car pulled behind me & I was cited with a DUI. I had 3 witnesses but my case never made it to captains mast as hard as I tried to peruse it, it never made it past the X.O.  I gave up.  It’s a clear case of double japery & now I would like my case reviewed.

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:   USN			None
	Inactive: USNR (DEP)	860828 - 870630	COG

Period of Service Under Review:

Date of Enlistment:  870701		Date of Discharge:  891103

Length of Service (years, months, days):

	Active:    02  04  03
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rate:  HT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (2)	Behavior:  3.10 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  SSR, AFEM 

Days of Unauthorized Absence:  None 

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:

890425:	Civil Conviction:  [Honolulu, Hawaii District Court of the First Circuit] for violation of driving under the influence of intoxicating liquor with a BAC of .162 percent.
Plead and found guilty.
Final Disposition of Sentence:  4 points on drivers license; 30 days absolute and 90 days conditional suspension of driver's license.
Fined $150.00.

890830:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by civil conviction on 890425 for driving under the influence of intoxicating liquor with a BAC of .162 percent and by reason of alcohol abuse rehabilitation failure due to his inability to participate in an alcohol abuse rehabilitation program.

890922:  	Applicant advised of his rights and having elected 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.

891017:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.  This determination was based on his pre-service involvement with alcohol and two other incidents involving alcohol while on active duty. 

891024:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

891103:	Declined in-patient treatment at VA Hospital.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 891103 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.   The Board found that there was no “double jeopardy” in the fact the applicant was discharged for the commission of a serious offense, despite his civil conviction for the same offense.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The applicant’s service was marred by two alcohol related incidents, of which one was considered a serious offense.  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 the naval service, and falls short of that required for a characterization of service under honorable conditions.  An upgrade would be inappropriate.  Relief denied.

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.  Relief not warranted.

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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, 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