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

 ex-EMC, USN
Docket No. ND03-00288

Applicant’s Request

The application for discharge review, received 20021209, 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.  Subsequent to the application, the Applicant obtained representation from the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031017.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

"1) R/R board to review validity of discharge. My administrative separation package, convened in mid-2002 should be on record.  I was discharged for civilian convictions on 020622.These convictions resulted after the previous administrative separation board in early 2000 revealed and recommended continued Naval service after alcohol rehabilitation, concurred by my command at that time, NRD Michigan.  After several attempts and inquiries of mine, the Navy failed to get me the treatment agreed upon.  Thus the disease went untreated and resulted in the dischargeable civilian convictions.  I was given this discharge from a “Captain” that had an alcohol problem in his command and felt it wise to end a career in an attempt to display a zero tolerance attitude, when junior personnel of that same command who also were convicted of DUI’s were given very little punishment “awards” and still others that were known to the entire command and nothing was done.
2) R/R board to review entire personal statement, service jacket and character references from upper command personnel and decide if a “General” discharge was warranted or “HONORABLE” is more deserving.
3) My discharge process: Was not afforded the opportunity for Transition Assistant classes, dental care required by discharge exam, eye examination.  These things are required by regulation.
4) My re-enlistment eligibility code: Serving the U.S.Navy honorably for nearly 15 years and I was given an RE-4 which does not allow me the opportunity to complete my service in the future and the possibility to receive the benefits of retirement after nearly 15 years of loyal and dedicated service.  As evidenced by my character references and all evaluations in my service jacket, the commands and individuals that I have worked for and with, all find my work ethic and dedication to the U.S.Navy stellar and feel I am and would be an asset.
5) Separating evaluation: My commanding officer wrote this evaluation himself and wrote it with trait marks all in the 1.0 and 2.0 range.  The only information in the remarks section said I was a smudge on the Navy’s image.  Any of the comments could be refuted by any member that worked under my command or in the Command.  I was given this evaluation for signature after signing and completing my separation documents.  With this, I was afforded no opportunity to discuss this evaluation with the command and no chance of correcting any injustices."

Additional issues submitted by Applicant’s counsel/representative (VETERANS OF FOREIGN WARS):

6)  “We concur with the Applicant’s contention that his discharge should be upgraded. We ask that the Board consider the stress of recruiting duty in your decision.  In addition, we also ask that you consider his service in Southwest Asia.”

Documentation

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

Copy of DD Form 214
Personal statement from Applicant
Thirteen pages of character references from Applicant’s Administrative Discharge Board

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	871104 - 871105	COG
	Active:    USN 		871106 - 920930	HON
					921001 – 970901	HON

Period of Service Under Review:

Date of Enlistment:  970902		Date of Discharge:  020621

Length of Service (years, months, days):

	Active:    04  09  19
	Inactive:  None

Age at Entry:  29			Years Contracted:  4 (17 months extension)

Education Level:  12			AFQT:  92

Highest Rate:  EMC

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.11 (6)	Behavior:  3.67 (6)		OTA:  3.15

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (5), USCG SOS Ribbon (2), SASR (3), KLM, HSM, NUC (2), NMCAM  (2), AFSM (2),  GCM (2d), AFEM, MUC (2), NRSR, NDSM, LoC (2)

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events:

011028:	Admitted to psychiatric ward, NMC Portsmouth, VA due to suicidal ideation after receiving 5th DUI on 011027.

011031:	Discharged from NMC Portsmouth, VA.  Recommended Level III alcohol rehabilitation and 90 daily AA meetings.

011203:	Admitted to Level III treatment for alcohol rehabilitation at NMC Norfolk, VA.

011221:	Discharged from Level III treatment upon program completion (Applicant had previously completed Level III rehabilitation in 1991 and 1993).  

020110:	Civil Conviction: US District Court, Norfolk City, VA for violation of Operate [a vehicle] in Violation of Restricted License.
Sentence:  Unknown.

020116:	Civil Conviction: US District Court, Norfolk City, VA for violation of Driving While Intoxicated, 2nd offense.
Sentence:  License suspended for 3 years.

020207:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and due to alcohol rehabilitation failure.

020207:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020410:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a civil conviction, that the evidence did not support a finding of misconduct due to alcohol rehabilitation failure, that the misconduct warranted separation, and recommended discharge under honorable conditions (general), suspended for twelve months.

020531:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to civil conviction and due to alcohol rehabilitation failure.  Commanding Officer’s comments “I do not concur with the recommendations of the Administrative Separation Board.
	    Although Chief R ---- is a talented and skilled Electrician’s Mate, he repeatedly violated state laws and Navy policy regarding driving under the influence.  He acquired five convictions and had two other alcohol related incidents, all in a twelve-year period.  He failed to notify his command of his convictions in July 2000 and May 2001, coming forward only when his conduct was no longer possible to hide…
	    Consequently, I strongly recommend EMC R----- be given a General Separation under honorable conditions without suspension.”

020612:	CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020621 under honorable conditions (general) for misconduct due to civil conviction (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.  There is no requirement that a Sailor attend Level III treatment multiple times prior to administrative separation.  The Applicant received civilian convictions for alcohol related incidents several years after he had completed Level III alcohol rehabilitation treatment the second time.  The fact that the Applicant was recommended for Level III treatment a third time and was unable to attend prior to committing more alcohol related misconduct neither establishes an impropriety concerning his discharge nor mitigates his misconduct.  Alcohol dependence does not excuse alcohol related misconduct.  Relief denied.

Issues 2 and 6.  A characterization of service of under honorable conditions (general) 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 two civilian convictions.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant was notified that his misconduct could have resulted in separation under other than honorable conditions.  An upgrade to honorable for the enlistment under review would be inappropriate.  Relief denied.

Issue 3.  The Applicant claims that he was not provided required classes, dental and medical care necessary for discharge.  This issue does not provide a basis for establishing an impropriety or inequity concerning his characterization of service and narrative reason for separation.  Relief is therefore denied.    

Issue 4.  Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

Issue 5.  The Applicant claims that his final performance evaluation was improper.  This issue does not provide a basis for establishing an impropriety or inequity concerning his characterization of service and narrative reason for separation.  The Applicant’s evaluation trait averages did not provide the basis for his discharge under honorable conditions (general).  Relief is therefore denied.   

The Applicant’s discharge characterization for the enlistment under review accurately reflects his service to his country.  The Applicant’s issues and documentation provided do not refute the presumption of regularity concerning this case.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33 effective 
9 Jul 01 until 21 Aug 02, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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