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

 
ex-BMSN, USN
Docket No. ND03-01015

Applicant’s Request

The application for discharge review was received on 20030516.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before a traveling panel closest to Cheyenne, WY.  The Applicant listed Personal Representation as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, all hearing are held in the Washington National Capital Region.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040415.  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, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (PRIVATE REPRESENTATIVE):

Whether the Applicant’s discharge, other than Honorable conditions, was onerous, inequitable, and excessive and should be upgraded to Honorable.”

(See attachment)

“THE APPLICANT’S DISCHARGE SHOULD BE UP-GRADED TO HONORABLE

I.	The Basis for the Classification
The precipitating event that led to the Applicant’s discharge was an entry of a guilty plea to the charge of Driving Under the Influence.  The plea was entered in San Diego where the applicant was stationed aboard the U.S.S. McKEE AS 41. The Applicant had had an earlier alcohol-related incident which came early on and which cost him his choice of school and his college benefits.
It should be noted that the incident which led to the discharge was handled entirely in the civilian courts. Their was no military or administrative action taken either by a court martial or before the Captain’s Mast. It should also be noted, though these papers may not be in the Applicant’s file, that he had reached an agreement with the Judge Advocate’s office that he would receive an Honorable Discharge; however, this Agreement was rejected by his E.O.

II. The Applicant’s Overall Military Record
Aside from the alcohol-related incidents, the Applicant had no other disciplinary actions taken against him. To the contrary, his overall record was meritorious. When the U.S.S. McKEE was being refurbished, he and two of his shipmates were awarded the Navy Achievement Medal in a formal ceremony on theMcKEE. The award was given because these three individuals completed assigned task ahead of schedule and in a manner which saved the Navy a huge sum of money.
In addition to this prestigious award, the Applicant regularly was called upon to stand as Bosun’s Mate of the Watch for ceremonies on the McKEE.  He also performed the same duty for other commands and received commendations from those other commands for the professionalism with which he performed those duties.
During his tour of duty, the Applicant served on the U.S.S. BARBOUR COUNTY, the U.S.S. KITTY HAWK, and with Security—NAVAL STATION SAN DIEGO.  In all instances, he performed his assigned duties in a prompt and professional manner.
Taken together, t he Applicant’s overall service record’s positive performances far outweigh the negative. It is respectfully submitted that the Applicant’s overall record and his acceptance of responsibility merit an up-grade of his discharge to Honorable.

III.  The Applicant’s Achievements Since His Discharge.
After his discharge, the Applicant returned to Cheyenne, Wyoming. He enrolled at Laramie County Community College where began work on a Bachelor’s Degree in Criminal Justice Administration. After two years, he transferred to the University of Wyoming where he completed his degree.
During college and after graduation, the Applicant has worked in a variety of criminal justice related fields. He worked for CAC (Community Alternatives Cheyenne), an alternative program for persons convicted of offenses. He also worked for FCS (Frontier Correctional Systems), a private correctional program and facility, first as a field technician and then as a case manager. When the Laramie County Drug Court was formed, he went to work for it, first, as a supervision specialist, and, currently, as the Drug Court Coordinator.
The applicant has made and is making a significant contribution to his city, county, and state in his current position. This demonstrates that the Applicant has, from his enlistment in the Navy, been a positive force rather than a negative one which his current discharge status implies.

IV. REASONS THAT THE ORIGINAL CHARACTERIZATION OF THE APPLICANT’S DISCHARGE WAS ONEROUS, INEQUITABLE AND EXCESSIVE.
The incident which led to the classification of the Applicant’s Discharge was never processed militarily even though it provided the basis for the discharge and the classification. The civilian charge was serious, and the Applicant did not treat the matter lightly when it occurred, nor does he treat it so now. Because of the people he works with in his profession, he has seen the very negative effects of alcohol and substance abuse. He works very hard with his clients to help them overcome their addictions.
However, under the current state of affairs, his classification is, in many respects, more onerous, inequitable and excessive than those of his clients, all of whom have been convicted of felonies. As it stands, the Applicant cannot volunteer for enlistment in the reserves, although it is clear that he would be a welcome recruit to any branch. Nor can the Applicant be considered for membership in any veteran’s group under the current classification. He cannot receive any veteran’s benefits. These consequences are extreme when balanced against all of the achievements of the Applicant both in the Navy and in his civilian life and when balanced against other acts which are much more serious and which have led to similar classifications for others. The Applicant, personally and through Counsel, respectfully requests that his current discharge classification be up-graded to Honorable.

16 October 2003

Respectfully submitted,

G_ A_ Z_, Attorney for the Applicant

Documentation

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

Letter from Applicant dated May 5, 2003
Supporting Document Cover Page
Copy of DD Form 214
Letter of Support to Governor D__ F___ dated February 25, 2003
Letter of Support from S___ T__, FCS Clinical Director
Character Reference Letter dated April 10, 2003
Character Reference Letter dated April 22, 2003
Copy of Navy Achievement Medal Certificate
Copy of Navy Achievement Medal Citation
Copy of Transcript from University of Wyoming
Copy of Certification of Birth State of Wyoming 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	910227 - 910724	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  910725		Date of Discharge:  950217

Length of Service (years, months, days):

	Active:    03  06  23
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  55

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  2.80 (1)		OTA:  3.60

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920420:	NJP for violation of UCMJ, Article 111: Drunk driving on 920213; violation of UCMJ Article 92: Wrongful possession of ammunition on NASI San Diego, CA on 920213.
	Award:  Forfeiture of $250.00 pay per month for 2 months.  No indication of appeal in the record.

931201:	NJP for violation of UCMJ, Article 134: Incapacitated for the performance of duties through prior wrongful over indulgency in intoxicating liquor or any drug on or about 0834, 931116.
	Award:  Forfeiture of $456.00 pay per month for 2 months (suspended fro 6 months), restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

931202:	Medical Evaluation: Applicant referred to medical after being involved in a alcohol related incident, evaluated and found not to be physically of psychologically dependent upon alcohol, recommended for Level III Therapy.

940118:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 134, Incapacitated for performance of duties through prior wrongful indulgence of intoxicating liquor at Naval Submarine Base, San Diego, CA on or about 0834, 931116 as evidenced by CO’s NJP held 931201), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
940126:	Applicant completed residential program for alcohol rehabilitation.
 	
941020:	Civil Conviction: Violation of CAL VEH CODE 23152a-Driving under the Influence.
Sentence:  To serve 180 days in the custody of the Sheriff (suspended for 5 years); Not drive with any alcohol in his system or on his breath; Not drive without public liability insurance and a valid driver’s license; Submit to a blood, breath or urine test when stopped by a peace officer for suspicion of driving under the influence of alcohol or drug; Have no reckless driving violations or violations involving driving under the influence of alcohol or drug with .08 or higher blood alcohol or criminal offense; Pay a fine of $1100.00, including penalty and alcohol abuse education and prevention assessments; To participate in a public service program.  30 days as a condition of probation.  To be completed at the direction of the probation department.  To have his driver’s license restricted for 180 days.  Return to Traffic A/Trial Setting Department/Misdemeanor/Arraignment/Department presiding on 27 April 1995.

941104:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to the commission of a serious offense (processing not mandatory), as evidenced by all alcohol offenses in your current enlistment and all offenses for which a punitive discharge would be authorized by the Manual for Court-Martial for the same or a closely related offense in your current enlistment.

941104:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

950206:	Commanding Officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to the commission of a serious offense (processing not mandatory).
 
950217:	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 19950217 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).

Issues 1-4:  In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on two separate occasions, to include the appropriate retention and discharge warnings as well as a civil conviction for DUI.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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, a positive employment record, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty

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.  

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 or any other evidence related to his discharge 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), Change 9, effective 
22 Jul 94 until 02 Oct 96, 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