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

ex-MSSN, USN
Docket No. ND03-01207

Applicant’s Request

The application for discharge review was received on 20030708.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record 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 20040514.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 18, Remarks, should contain the following statement:  "CONTINUOUS HONORABLE ACTIVE DUTY FROM 88OCT17 UNTIL 92SEP16".  The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant. 

Documentation

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

Copy of DD Form 214
Letter from Applicant dated June 26, 2003
Resume (2 pages)
Service Related Documents (10 pages)
Copy of Honorable Discharge Certificate
Reference Letter dated December 18, 2002 (2)
Character Reference Letter dated February 24, 2003 (2)
Copy of Certificate of Appreciation
Copy of Letter of Commendation
Copy of Achievement Medal Citation Letter
Copy of Letter from Rear Admiral J.R. F___ dated January 5, 1993
Copy of Thank you Letter from Admiral J.R. F___ dated December 21, 1992
Copy of Letter of Appreciation dated December 14, 1992
Enlisted Performance Evaluation Reports (16 pages)
Cover Letter to Letter of Appreciation dated July 26, 1989
Copy of Letter of Appreciation dated July 18, 1989
Shellback Initiation Certificate

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	870629 - 881016	COG
	Active:   USN			881017 - 920916	HON

Period of Service Under Review:

Date of Enlistment:  920917		Date of Discharge:  930914

Length of Service (years, months, days):

	Active:    00  11  28
	Inactive:  None

Age at Entry:  22			Years Contracted:  6

Education Level:  12			AFQT:  47

Highest Rate:  MS3

Final Enlisted Performance Evaluation Averages (number of marks):

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

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, NDSM, GCM

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:

920917:	Reenlisted at NAVPGSCOL Monterey, CA for 6 years.

930510:	DAAR indicates alcohol abuse, determined by Civilian Police.

930512:	DAAR indicates alcohol abuse, determined by Command Supervisor. 

930603:	Retention Warning:  Advised of deficiency (Substandard performance-Alcohol Abuse.  Incident 1: On 930412 you were turned over by the San Diego Police Department for being Under the Influence in public/unable to care for yourself.  Incident 2: ON 930426 you were to report for duty at 0600 to participate in the semi-annual PRT.  You were listed in a UA status until 0730.  Upon reporting for the PRT, you were found to have alcohol on your breath and were screened for fitness for duty.  Although you were found fit for duty, it was determined that your state had a direct impact on your failing the PRT.  Subsequently, a CAAC and medical screening have determined you to be alcohol dependent), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930610:	Commenced Level III treatment.

930707:	Completed Level III treatment, refused to fully participate in aftercare.
 
930723:	NJP for violation of UCMJ, Article 92: Having knowledge of a lawful order issued by MS1 M_ to remain at work until 1630, 930719, did, fail to obey the same by wrongfully leaving work at 1430, 920719.
	Award:  Restriction to USS CARL VINSON for 12 days.  No indication of appeal in the record.

930805:	NJP for violation of UCMJ, Article 86: Unauthorized absence from unit commencing at 0600 930804 and terminating at 1200, 930804.
	Award:  Forfeiture of ½ month pay for 2 months (suspended for 30 days), restriction to TPU for 30 days, reduction to E-3 (suspended for 30 days).  No indication of appeal in the record.

930823:	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 participate in, cooperate in, or successfully complete Level III treatment and misconduct due to the commission of a serious offense as evidenced by Commanding Officer’s NJP on 930722 for a violation of the UCMJ, Article 92.

930824:	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.

930831:	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.

930903:	Involved in a Civil Conviction, charge with civil offence VC 23152A, driving a vehicle under the influence of alcohol, drug, or combination.  Court date scheduled for 0800,930910 at South Bay Municipal Court, San Diego, CA.

930909:	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 19930914 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).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore 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 violating UCMJ, Article 92 thus substantiating the misconduct.  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.

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.  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 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 5, effective 
05 Mar 93 until 21 Jul 94, 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