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

ex-UTCR, USN 
Docket No. ND04-00513

Applicant’s Request

The application for discharge review was received on 20040128.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Wish to re-enlist in RNMCB-17, DET 1417, Salt Lake City Utah
During the last week of Level III treatment I relapsed.  I first went to my DAPA counseler to seek advice.  I was told that if it was found out I had relapsed, I would be discharged.  At 18 yrs old I realized I had a problem, I requested an additional week but was denied.  I no longer have an alcohol problem and would like to continue service in the SEABEES.”

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950913 - 960818	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960819		Date of Discharge:  970815

Length of Service (years, months, days):

	Active:    00  11  27
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  62

Highest Rate:  UTCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR

Days of Unauthorized Absence:  None

*No marks found in service record

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630605.

Chronological Listing of Significant Service Events:

970408:	Applicant screened at ATC/CAAC Rota, Spain.  Applicant found alcohol dependent.  Recommend Level III if retained.

970414:	Retention Warning: Advised of deficiency (Drinking under age on 970205 at Clay County, TX while assigned to Sheppard AFB in a student status.  Misconduct of underage drinking on 970301 at CBC Port Hueneme, CA.  Unlawful entry and underage drinking on 970302 at CBC Port Hueneme, CA.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970506:	NJP for violation of UCMJ, Article 92 (2 specs): (1) Failed to obey a lawful written regulation on 970301 by possessing and consuming alcoholic beverage under the age of 21, (2) Failed to obey a lawful written regulation on 970302 by drinking alcoholic beverage under the age of 21.
	Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

970508:	Retention Warning: Advised of deficiency (Failure to obey a lawful written regulation, to wit: drinking alcoholic beverage under the age of 21 on 970302), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970514:	Retention Warning:  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 970721.]  
	
970519:	Applicant to Alcohol Treatment Facility, Naval Hospital Rota, Spain.  Initial Diagnosis: Axis I: Alcohol dependence, with physiological dependence.

970623:	Applicant released from alcohol rehabilitation treatment due to consumption of alcohol and superficial participation during the course of treatment.  Diagnosis: Axis I: Alcohol dependence, with physiological dependence.

970708:	Applicant to emergency room via ambulance.  Applicant found passed out in town.  Released to command.  Needs drunk watch.  BAL .276.

970711:	NJP for violation of UCMJ, Article 134: Incapacitated for proper performance of duties as a result of wrongful previous overindulgence of alcohol.
	Award: Restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

970712:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure as evidenced by your inability to successfully complete Level III rehabilitation treatment program, misconduct due to a pattern of misconduct as evidenced by two nonjudicial punishments within your current enlistment and misconduct due to the commission of a serious offense as evidenced by your failure to obey a lawful written regulation by possessing and consuming alcoholic beverage while under the age of 21.

970717:	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.

970721:	Commanding Officer recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

970728:	Commander, U.S. Naval Activities, Spain 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 19970815 under other than honorable conditions for misconduct due to the 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:  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 on two occasions for violating UCMJ, articles 134 and 92 and his failure to complete alcohol dependence rehabilitation.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his 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 characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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.  

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 14, effective 
03 Oct 96 until 971212, Article 3630605, 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