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

ex-CDR, USN
Docket No. ND03-01231

Applicant’s Request

The application for discharge review was received on 20030716.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Reasons Satisfactory to SECNAV.”  The Applicant requests a documentary record review.  The Applicant designated civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040526.  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 and reason for discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/IN LIEU OF TRIAL BY COURT MARTIAL, authority: SECNAVINST 1920.6B and BUPERS ORDER 3559 DTD 211301Z DEC 99.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, submitted by his counsel, as stated on the application:

“1.  Applicant has made sufficient progress and upgrading his discharge to Honorable is in everyone’s best interest.

2.  Given Applicant’s progress no substantial purpose is served by continuing with a discharge that handicaps his employment prospects.

3.  Applicant’s progress is sufficient to justify changing his RE code to one with no negative connotations.”

Documentation

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

Applicant’s ltr to the Board dtd Dec 19, 2002 confirming his counsel
Copy of DD Form 214
Applicant’s counsel, F_ L. B_, ltr to the Board dtd Dec 21, 2002 (3 pages)
Applicant’s pre-trial confinement letter dtd Oct 29, 1999 (4 pages)
Applicant’s Request for Separation dtd Oct 29, 1999 (2 pages)
Recovery Program letter, White Flint Recovery Inc., dtd Dec 9, 2002
Teaching License, State of North Carolina, dtd Mar 20, 2001
Ltr from Capt S_, MC, USN, Chairman, Dept of Psychiatry, NNMC dtd Dec 20, 2002, including 4 pages of Curriculum Vitae 
Applicant’s ltr to his Attorney (Mr. B_) dtd Dec 9, 2002
Ltr from Attorney dtd Dec 21, 2002
Marriage Certificate was listed but not enclosed
Congressional Testimony excerpt was listed but not enclosed

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Commission:  810527	Date of Discharge:  991222

Length of Service (years, months, days):

	Active:    18  06  26
	Inactive:  None

Age at Entry:  22	

Education Level:  16	

Highest Rank:  CDR

Officer Performance Reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR (2), Navy Battle “E” Ribbon, Marksman Rifle Ribbon, NUC, SWASM (w/Bronze Star)

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  SECNAVINST 1920.6B and BUPERS ORDER 3559 DTD 211301Z DEC 99.

Chronological Listing of Significant Service Events:

920708:	NAVHOSP Portsmouth, VA, Medical Board Report:  33-year-old male LCDR/USN/AD, was seen as an outpatient at Naval Hospital Portsmouth for re-evaluation with the diagnosis of Sarcoidosis.  Attention invited to previous Medical Board dated 16 Dec 1991 with the diagnosis of Sarcoidosis.  Member rendered the diagnosis of Sarcoidosis #135 based on an open lung biopsy.  He received corticosteroid therapy with good results.  He is currently asymptomatic and he is fit for return to full duty both at sea and foreign shores.  Current medications are none.

920805:	BUPERS approved the Medical Board’s finding of fit for full duty.

970107:	Applicant completed a residential program for alcohol dependency at the Naval Addiction Rehabilitation Clinic, Jacksonville, FL.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

981231:	Applicant placed in inpatient treatment and completed treatment program on 15JAN99 for alcohol dependency at the Malcolm Grow Medical Center, Department of the Air Force, Andrews Air Force Base.  [EXTRACTED FROM COMMANDANT, NAVAL DISTRICT WASHINGTON’S LTR OF MAY 5, 1999.]

9903xx:	Applicant, again, entered the inpatient treatment program at Malcolm Grow.  Has completed this treatment and now enrolled in aftercare program that includes daily attendance at Alcoholics Anonymous meetings.

990412:	Admiral’s Mast:  NJP for violation of UCMJ, Article 86 (2 specs):  
Specification 1:  On or about 29 Mar 99, without authority, go from his appointed place of duty, to wit:  Defense Mapping Service.   
Specification 2:  On or about 31 Mar 99, without authority, absent himself from his place of duty at which he was required to be, to wit:  Defense Mapping Service, located at Fort Belvoir, VA, and did remain so absent until on or about 1100, 31 Mar 99.
Violation of UCMJ, Article 111:  On or about 16 Dec 98 on Bristgale Road, Annapolis MD, physically control a motor vehicle while the alcohol concentration in his blood was .28 grams of alcohol per 100 milliliters of blood, as shown by chemical analysis, in a reckless manner by crossing the center medial and hitting the roadside curb.  
Violation of UCMJ, Article 112:  On or about 30 Mar 99, was at Defense Mapping School, found drunk on duty.  Applicant pled guilty and was found to have committed these offenses.
	Award:  Punitive letter of reprimand and restricted to NDW for 80 days (suspended for 1 month).  No appeal submitted.

990413:	Applicant appeared before Anne Arundel County Circuit Court for driving while intoxicated on 16 Dec 98.  Judge determined that Applicant was guilty but he stayed the entering of judgment, deferred further proceedings, and placed Applicant on probation for a period of one year.  Terms of the probation include regular contact with a local probation officer, abstinence from alcohol, attendance at a victim impact panel meeting, and completion of his aftercare program.  [EXTRACTED FROM COMMANDANT, NAVAL DISTRICT WASHINGTON’S LTR OF MAY 5, 1999.]

990429:	Punitive letter of reprimand issued to Applicant.

990429:	Election of NJP Appeal Rights.  Applicant acknowledged receipt of punitive letter of reprimand and do not intend to appeal the punishment.

990429:	Election of Right to Submit a Statement.  Applicant elect not to submit a statement.

990505:	Commandant, Naval District Washington reported to Commander, Navy Personnel Command of Applicant’s misconduct.  Such misconduct includes NJP on 12APR99 for driving while intoxicated, NJP on 16DEC98 drunk of duty and unauthorized absence, and civil conviction on 13APR99 for driving while intoxicated.  

990521:	Admiral’s Mast:  NJP for violation of UCMJ, Article 86:  Authorized absence; violation of UCMJ, Article 111:  Drunk driving/BAC.14; violation of UCMJ, Article 112:  Drunk on duty. 
	Award:  45 days restriction (15 days suspended), forfeiture of $400 pay per month for 2 months (1 month suspended).  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

990608:	Charges preferred/placed in pretrial confinement:  Applicant, being on restriction as result of 21 May 99 mast, failed to show for work on 2 Jun 99.  On 3 Jun 99 he was found in his CBQ room, drunk (BAC .39), and sent to Bethesda for detox until 8 Jun 99.  Upon release from hospital, placed in pretrial confinement on charges of UA, orders violation and conduct unbecoming an officer.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

990701:	Applicant’s defense counsel requested an alternative disposition in the General Court-Martial.

990708:	Released from pretrial confinement and allowed to attend an inpatient alcohol treatment program in York, PA.  Charges held in abeyance.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

990903:	Treatment completed, Applicant returned to NDW for duty.  No action on previous charges, Board of Inquiry scheduled for 26 Oct 99.

991017:	Arrested in Maryland for drunk driving, failing to stop after striking an unattended vehicle, and failing to display registration upon demand.  Next court date is 15 Jan 00.  Command discovered charge summary sheet in mbr’s personal effects after hospitalization on 23 Oct 99, confirmed arrest date with clerk of court, awaiting police report.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

991018:	Arrested in Arlington, VA for public intoxication.  Applicant arrested in shopping center parking lot for public intoxication after citizen reported him to police.  Found in vehicle rocking back and forth, eyes closed, admitted to drinking, and almost fell over when he stepped out of vehicle.  Several empty bottles of alcohol found in vehicle.  Applicant was in uniform.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

991019:	Applicant self admits to Bethesda, NNMC, drunk, for detox.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

991022:	Released from hospital, placed on restriction (vacated suspended restriction from 21 May 99).  Fails to phone-in muster at 21 with Duty Officer.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

991023:	Fails to muster at 1200, found unresponsive in BOQ room by duty personnel.  Rushed to civilian hospital with BAX of .56.  A receipt for purchase of alcohol at 0930 on 23 Oct, plus two empty bottles of alcohol were found in room.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

991028:	Released from Bethesda NNMC, placed in pretrial confinement.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, WHICH WAS PROVIDED BY THE APPLICANT.]

991028:	Placed in pre-trial confinement due to the alleged offenses:
		Violation of UCMJ, Article 86 (2 specs):  Unauthorized absence
Specification 1:  On 2 Jun 99, at 0800, absent himself from his appointed place of duty until apprehended on or about 1130, 3 Jun 99.
Specification 2:  On 18 Oct 99, at 0800, absent himself from his appointed place of duty until on or about 0800, 19 Oct 99.
Violation of UCMJ, Article 92 (3 specs):  Orders violation
Specification 1:  On 1 Jun 99 violated restriction orders dated 28 May 99 by failing to muster with supervisor via telephone.
Specification 2:  On 3 Jun 99 violated restriction orders dated 28 May 99 by consuming alcoholic beverages.
Specification 3:  On 23 Oct 99 violated restriction orders dated 22 Oct 99 by consuming alcoholic beverages.
Violation of UCMJ, Article 133 (3 specs):  Conduct unbecoming an officer
Specification 1:  On 3 Jun 99, while on restriction, at Combined Bachelor’s Quarters in Bethesda, MD, was drunk and disorderly.
Specification 2:  On 18 Oct 99, in Arlington, VA at approx 1230, in a public shopping center, was drunk and disorderly while in uniform, to the disgrace of the armed forces.
Specification 3:  On 23 Oct 99, while on restriction, at Regional Bachelor Housing (Anacostia), was drunk and disorderly.  [EXTRACTED FROM COMMANDANT, NDW, LTR OF 29OCT99, PROVIDED BY THE APPLICANT.]

991029:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of all the charges and specifications preferred against him on the charge sheet.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  [EXTRACTED FROM SUPPORTING DOCUMENTS SUBMITTED BY THE APPLICANT.] 

991216:	Applicant requested resignation with a characterization of service as general (other honorable conditions) in lieu of a trial by court-martial.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991222 with a General (Under Honorable Conditions) in lieu of a trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issues 1 and 2:  The Applicant states, his “discharge handicaps his employment prospects” as a civilian, due to the nature of the discharge.  The characterization of the Applicant’s discharge accurately reflects his service to his country.  It was proper and equitable as well as being consistent with his request for administrative separation in order to escape trial by Court-Martial.  Normally, to permit relief, an error or inequity must have existed during the period of service in question.  No such error or inequity occurred during the Applicant’s service.  The Applicant’s service record is marred by nonjudicial punishment (NJP) awarded on two separate occasions and a period of confinement due to his “continued commission of misconduct,” which placed himself and others at risk.  It must be noted that most members of the naval service serve honorably and well, thereby earning honorable discharges.  In fairness to those individuals, commanders and separation authorities are tasked to ensure undeserving service members receive no higher service characterization than is due.  An upgrade to honorable would be inappropriate.  

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.  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.  The Board would like to take time to commend the Applicant on his successful completion of the White Flint Recovery, Inc. treatment program and his continued involvement with the Alcoholics Anonymous organization.  We wish him continued success in his efforts to maintain sobriety; however, the Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief not warranted.

Issue 3:  Concerning a change in reenlistment code “to one with no negative connotations,” 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.  Additionally, officers are not assigned a reenlistment code upon release from service, hence, Block 27 (Reentry Code) on an officer’s DD-214 is marked “NA” (Not Applicable).  

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.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, Absence without leave; Article 92, Failure to obey an order or regulation; Article 111, Drunken or reckless driving; Article 112, Drunk on duty;      Article 133 Conduct unbecoming an officer and a gentleman, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.

C.  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.  

D.  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.

E.  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