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

 
ex-SN, USN
Docket No. ND04-00415

Applicant’s Request

The application for discharge review was received on 20040115.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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 20041112.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I have worked hard to make chances in my life and feel that an upgrade would help to improve my self esteem.  I am now clean and sober which was part of my problem while in active duty.”

Documentation

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

Letter from Samaritan Center, dated November 24, 2003
Samaritan Center Program discharge summary, dated June 25, 2003
Statement in support of claim, dated November 24, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920516 - 920706	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920707		Date of Discharge:  941004

Length of Service (years, months, days):

	Active:    02  02  28 (Does not exclude lost time)
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  45

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.10 (2)	Behavior:  3.10 (2)		OTA:  3.20

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  9

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

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

Chronological Listing of Significant Service Events:

921113:	Applicant to unauthorized absence 1208, 921113.

921122:	Applicant from unauthorized absence 1440, 921122 (9 days/surrendered).

921203:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1200, 921113 to 1440, 921122.
	Award: Restriction and extra duty for 14 days.  No indication of appeal in the record.

930708:	Retention Warning: Advised of deficiency (A personality disorder manifested by violations of UCMJ, Article 86 (3 specs): failure to go to appointed place of duty (2 specs), going from an appointed place of duty (1 spec)), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930712:	NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence, fail to go at the time prescribed to appointed place of duty.
	Date of Offense: 930621.
	Award: Restriction and extra duty for 15 days.  No indication of appeal in the record.

940412:	Retention Warning: Advised of deficiency (Failure to conform to body fat standards), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.  [Extracted from Commanding Officer’s message dated 940916.]

940627:	Applicant admitted to rehabilitation.  Admitting diagnosis:  Alcohol dependence.

940727:	Applicant from rehabilitation.  Discharge diagnosis: Alcohol dependence.  Tinea corporis, treated.  Disposition: Applicant returned to duty as a rehabilitation failure.  Recommend Applicant be administratively separated.

940908:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
	Award: Forfeiture of $511.50 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

940913:	Fleet Anti-Submarine Warfare Training Center, Pacific notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the illegal or wrongful use of a controlled substance to wit: methamphetamine, misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ during current enlistment, and alcohol abuse rehabilitation failure as evidenced by failure through inability or refusal to participate in, cooperate in, or successfully complete such a program.

940913:	Applicant advised of rights and having elected not 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.

940916:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct, and alcohol rehabilitation failure.

940926:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941004 under other than honorable conditions for misconduct due to a pattern of misconduct (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.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) on three occasions for violation of UCMJ, Articles 86 and 112a and failure to complete alcohol rehabilitation treatment.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects her 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 or under honorable (general) characterization of service.  An upgrade is inappropriate.  Relief denied.

The Applicant’s discharge characterization accurately reflects her service to her country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety occurred 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.  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, an employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of a substance free lifestyle, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate her misconduct sufficient to warrant an upgrade to her discharge.  Relief denied.

The Applicant is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge.  The Applicant can provide additional 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, Change 9, effective 
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

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