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

 
 ex-OS3, USN
Docket No. ND03-00593

Applicant’s Request

The application for discharge review was received on 20030221.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040204.  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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was inequitable because it was based on a incident in my second reenlistment.  Prior to my enlistment I serve four years of exemplary service, I just think that my discharge should be changed to Honorable based on in part my post service achievements and my first 4 years of service 1984 to 1989.  I think what should be part of my total years of service and not just the last two years of my service.”

Additional issues submitted by Applicant’s representative (American Legion):

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

Documentation

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

Character reference from Applicant’s sister, dated January 15, 2003
Character reference, dated January 15, 2003
Character reference, dated January 15, 2003
Bachelor of Science degree, dated June 21, 1997
Applicant’s DD Form 214 (2)
Applicant’s DD Form 215

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	851019 - 851024	COG
	Active:   USN			851025 - 890929	HON

Period of Service Under Review:

Date of Enlistment:  890930		Date of Discharge:  921125

Length of Service (years, months, days):

	Active:    03  01  26
	Inactive:  None

Age at Entry:  25			Years Contracted:  5

Education Level:  12			AFQT:  28

Highest Rate:  OS3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.76 (5)	Behavior:  3.60 (5)		OTA:  3.76

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), NUC, SASM (2), NDSM

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:

890930:	Applicant reenlisted for 5 years.

900119:	Applicant briefed on Navy's policy of drug and alcohol abuse.

900628:	Dependency evaluation: Psychological alcohol dependence.  Level III.

900725:	Retention Warning:  Advised of deficiency (Alcohol abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910111:	Applicant to Level III treatment.

910222:	Applicant completed Level III treatment.

911126:	Dependency evaluation: Psychological alcohol dependence.

920224:	Drug and Alcohol Evaluation:  Applicant found dependent on alcohol based on a medical evaluation following Level III treatment in November 1991.

920319:	Civil Conviction: Duvall County Court for violation of driving under the influence on 920318.
Sentence: Fined $452.50, probation for 6 months, revoked license for 6 months, community service for 50 hours, DUI school and victim impact panel.

920406:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0700-1900, 920319, violation of UCMJ Article 107: False official statement on 920320, to wit: the charge of DUI was reduced to reckless driving.
	Award: Restriction and extra duty for 30 days, reduction to OSSN.  Reduction suspended for 6 months.  No indication of appeal in the record.

920423:	Civil Conviction: Municipal Court, Hollywood, SC for violation of driving with a suspended license, open container, and driving under the influence on 920207.
Sentence: Fined $237.00.

920527:	Applicant notified of intended recommendation for discharge warranted by service record by reason of alcohol abuse rehabilitation failure as evidenced by your involvement in several alcohol related incidents after completing Level III CAAC.

920601:	Applicant waived right to administrative discharge board.

920612:	Commanding Officer recommended discharge by type warranted by service record by reason of alcohol rehabilitation failure.

920706:	Drug and Alcohol Screening: Applicant found alcohol dependent.  Recommend continue processing for administrative separation due to failure to rehabilitate.

921005:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by your failure to successfully complete a one-year aftercare program of rehabilitation, by reason of misconduct due to civil conviction for driving with a suspended license, open container, and driving under the influence as evidenced by your official entries contained in your service record, misconduct due to the commission of a serious offense as evidenced by your CO’s NJP on 6 April 1992 for unauthorized absence in excess of 30 days, and for making a false official statement as reflected in official entries contained in your service record, and by reason of misconduct due to a pattern of misconduct as evidenced by official entries contained in your service record.

921005:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights, except the right to submit statements.

921016:	Applicant’s personal statement.

921029:	Commanding Officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, by reason of misconduct due to civil conviction, misconduct due to the commission of a serious offense and by reason of misconduct due to a pattern of misconduct.

921113:	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 19921125 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 Applicant states his discharge was based on one isolated incident in his second enlistment.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge 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 for the period from 19890930 through 19921124 was marred by two civil convictions, NJP for violation of the UCMJ, Articles 86 and 107, and alcohol abuse rehabilitation failure.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

Issue 2:  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time the Applicant has not submitted sufficient documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

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 "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