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

 ex-AT2, USN
Docket No. ND04-00738

Applicant’s Request

The application for discharge review was received on 20040330.  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 20041029.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct - Convicted by a civil court for offense(s) occurring during current term of military service, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  My discharge was inequitable because it was based on one incident in over 7 years of exemplary service.”

“2.  My refusal of CAAC Level III was based on the fact that I would have had to extend my enlistment in order to attend.”

“3.  My evals prior to this incident were 3.8-4.0 Evaluation comments show that I was an asset to the Navy and performed my duties to the best of my ability.”

“4.  Since my release from service, I have been a model citizen.  I have had no further incidents and have remained alcohol free for the last 11 ½ years.”

Documentation

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

Copy of DD Form 214 (prior service)
Copy of DD Form 214 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	831013 - 840911	COG
	Active:   USN 			840912 - 880908	HON

Period of Service Under Review:

Date of Enlistment:  880909		Date of Discharge:  920731

Length of Service (years, months, days):

	Active:    03  10  22
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  12			AFQT:  86

Highest Rate:  AT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.93 (3)	Behavior:  3.66 (3)		OTA:  3.93

Military Decorations:  None

Unit/Campaign/Service Awards:  NEM, SSDR, AFEM, NDSM

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct-Convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

880909:	Reenlisted at SEAOPDET Whidbey Island, WA for 4 years.

911127:	CAAC, NAS Whidbey Island evaluated Applicant following referral by MMCM G_ due to an off base DWI (BAC .16) on 911011.  Applicant stated he drinks three to four beers, three times per week.  Applicant attended Level II in 1987 due to a DWI (BAC .17) received in December 1986.  Applicant denies a family history of substance abuse.  Applicant recommended for inpatient treatment at ARD/ARC as soon as possible.  While awaiting Level III, he should be placed into an interim Command monitored program consisting of two AA meetings per week, receive a Medical Officer evaluation, and maintain contact with Command DAPA. 

911209:	Drug/Alcohol Dependency Evaluation:

AXIS I: Alcohol Dependent, mild, moderate, 303.90
 Nicotine Dependent, moderate, 305.10
 Cannabis abuse, 305.20, inactive 
 
911218:	Civil Conviction: [District Court of Island County, State of Washington] for Driving Under the Influence (DUI) of Intoxicants and/or Drugs.
Sentence:  365 days in jail (363 days suspended), pay a $400.00 fine.

920602:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a civil conviction as evidenced by your conviction in the District Court of Island County and alcohol abuse rehabilitation failure through refusal to participate in a Level III Alcohol Abuse Rehabilitation Treatment Program as evidenced by your signed acknowledgement documented by service record.

920608:	Applicant advised of his 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. 

920615:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to civil conviction and alcohol abuse rehabilitation failure.  Commanding Officer’s comments (verbatim): AT2 R_ originally requested release from the U.S. Navy with an Honorable Discharge under the Voluntary Early Release Program.  His request was not approved for submission due to his civilian conviction for Driving While Under the Influence (DUI) in September 1991.  However, the DUI is the only misconduct in his record and sufficient time has passed with no further disciplinary problems.  AT2 R_ was not amenable to treatment through the Navy and refused to participate in an assigned program because he elected to participate in a court ordered civilian program.  After careful consideration of this case and AT2 R_’s desire to be discharged, it is recommended that he be separated with a General Discharge.  In light of the amount of time that has passed since his involvement with civilian authorities as well as his lack of further disciplinary problems, a General Discharge is a more appropriate  characterization than a discharge under other than honorable conditions would imply.   

920713:	BUPERS directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920731 under honorable conditions (general) for misconduct due to civil conviction (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 1-3:  The Applicant states that his discharge was inequitable because it was based on one incident.  A characterization of service of under honorable conditions (general) is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant was discharged under honorable conditions (general) by reason of misconduct due to a civil conviction as evidenced by your conviction in the District Court of Island County.  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.  Relief denied.

Issue 4:  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  At this time, the Applicant has not provided sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON 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