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

 
ex-FR, USN
Docket No. ND04-01380

Applicant’s Request

The application for discharge review was received on 20040902.  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 20041222.  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 - 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.  “During the time of my enlistment I had a problem with addiction.  I am currently in recovery and have had numerous years of absence from drugs.  This problem at the time of my service caused many of the disciplinary episodes that led to my early separation.  Since that time I have completed my A.A. Degree at Santa Fe Community College in Gainesville FL, and currently am pursuing my Bachelors degree in Journalism at University of North Florida”

2.  “The applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed November 16, 2004 and the following comments are hereby submitted.

Our review of the service record reveals that this former member had served in a combat environment and received the South West Asia Service Medal with 2 Stars and the Kuwait Liberation Medal.

The record indicates that he attended the Alcohol Rehabilitation Center, successfully completed the program, in Norfolk Virginia during his first admittance.  However, he failed Level III of the rehabilitation program.

The veteran contends that his discharge should be upgraded to General Under Honorable Discharge.

EQUITY ISSUE: Based on our review of the evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), chapter 9, as it pertains to quality of service as evidence by combat service, awards and decorations.

We refer this case to the Board for their careful and compassionate consideration.  We petition and ask that the Navy Discharge Review Board's final decision will reflect sound equitable principles consistent within the laws, regulations, policies, and discretion as promulgated by title 10 U.S.C. section 1553, and set forth in 32 C.F.R. part 724 and SECNAVINST 5420.174c, see enclosure (1).

Sincerely,
W_ G_ C_ (Applicant's representative)/
National Service Supervisor
Washington (DC) Regional Office”

Documentation

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

University of North Florida unofficial transcript (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900323 - 900903	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900904		Date of Discharge:  920930

Length of Service (years, months, days):

	Active:    02  00  27	
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12 		AFQT:  46

Highest Rate:  FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.70 (2)	Behavior:  2.40 (2)		OTA:  2.70

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM with 2 Bronze Stars, KLM, BEA, NUC, NDSM, SSDR

Days of Unauthorized Absence:  26

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910513:	Applicant to unauthorized absence 0700, 910513.

910515:	Applicant from unauthorized absence 1200, 910515 (2 days/surrendered).

910523:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
	Award: Forfeiture of $250 per month for 1 month, restriction for 7 days.  No indication of appeal in the record.

911214:	Applicant to unauthorized absence 0730, 911214.

920106:	Applicant from unauthorized absence 0700, 920106 (24 days/surrendered).

920124:	NJP for violation of UCMJ, Article 86: Unauthorized absence for 24 days.
	Award: Forfeiture of $426 per month for 1 month, restriction and extra duty for 30 days, reduction to E-1.  Restriction and extra duty for 14 days and reduction suspended for 90 days.  No indication of appeal in the record.

920212:	Retention Warning from USS GUNSTON HALL (LSD-44):  Advised of deficiency (Delinquency in the following PQS: 3M-301 Maintenance person.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920316:	Medical: A: Psychological EOTH dependence.  P: Recommend Level III Rx. Will inform DAPA and C.O.C. of findings.

920422:	Applicant to ARC Norfolk, for alcohol rehabilitation due to alcohol dependence.

920529:	Applicant successfully completed treatment.  Diagnosis remains unchanged.

920723:	NJP for violation of UCMJ, Article 90: Willful disobedience of superior commissioned officer.
	Award: Forfeiture of $441 per month for 1 month, reduction to E-1.  No indication of appeal in the record.

920723:	Retention Warning:  No further information found in service record.  [Extracted from Commanding Officer’s message dated 920810 and 920903.]

920801:	Medical Sick Call: ETOH/substance abuse dependent.  P: Referred to HM1 for further evaluation.  MO addendum: A: Polydrug abuse/dependence.  B: Applicant in need of further EOTH/drug rehabilitation.

920808:	USS GUNSTON HALL (LSD-44) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920808:	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.

920810:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920903:	Applicant was found polydrug and ETOH dependence.  Failed Level III treatment.  Recommend VA treatment upon separation.

920903:	USS GUNSTON HALL (LSD-44) notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse as evidenced by NAVDRUGLAB Norfolk message 251010Z AUG 92.
 
920903:	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.

920903:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.

920922:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

920928:	NJP for violation of UCMJ, Article 134: Disorderly conduct and drunkenness, violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 91: Insubordinate conduct toward a warrant officer, noncommissioned officer or petty officer.
	Award: Forfeiture of $100 per month for 1 month.  No indication of appeal in the record.

920928:	Applicant declined in-patient treatment for drug/alcohol dependence.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920930 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).

Issues 1-2:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his drug and alcohol problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service.  His service record is marred by award of nonjudicial punishment (NJP) on four separate occasions for violating the UCMJ, Articles 86, 90, 91 128 and 134, failure to complete alcohol rehabilitation and positive urinalysis for illegal drugs 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, demonstrating he was unsuitable for further service.  An upgrade to general (under honorable conditions) 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 a positive employment record, a drug and 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.  

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, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023