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

  ex-BTFN, USN
Docket No. ND05-00243

Applicant’s Request

The application for discharge review was received on 20041115.  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 review was conducted in Washington, D.C. on 20050201.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Due to my Honorable service and conduct during my naval career and desert shield and desert storm.  I was a 4.0 sailor up to my 1st DUI and even up to my 2nd DUI.  It was at my own request to be discharged after the 2nd DUI. Due to the embarrassment of the offense.  Since being discharged from the Navy and the nature of my Discharge, I haven’t drank for almost 12 years.
During my years of service I was awarded 3 Good Conducts, 3 Navy Achievement Medal and 1 Navy com.  Please review my record and verify.”

Documentation

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

Letter from LCDR, undated
Letter from LT, dated May 27, 1993
Letter from LTJG, dated June 3, 1993

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN			790329 - 830227	HON
		   USN			830228 – 880225	HON

Period of Service Under Review:

Date of Enlistment:  880226		Date of Discharge:  931014

Length of Service (years, months, days):

	Active:    05  07  19
	Inactive:  None

Age at Entry:  28			Years Contracted:  6

Education Level:  12			AFQT:  52

Highest Rate:  BT1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (8)		Behavior:  3.90 (8)		OTA:  3.90

Military Decorations:  NAM (2), ESWS

Unit/Campaign/Service Awards:  GCM (2), NDSM, SASM with 3 Bronze Stars, SSDR with 3 Bronze Stars, KLM, NUC, USCGSOR, .38 Cal SS, NEM

Days of Unauthorized Absence:  1

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

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

Chronological Listing of Significant Service Events:

880226:	Applicant reenlisted for six years.

900914:	Civil Conviction:  General District Court, Traffic Division Municipal Center, Virginia Beach, VA for violation of driving under the influence.
Sentence:  Fine $250.00 and court costs, license suspended for 6 months, jail for 30 days, ASAP, probation for 1 year.  Jail suspended.

901007:	Applicant to unauthorized absence 0700, 901007.

901008:	Applicant from unauthorized absence 1530, 901008 (1 day/surrendered).

901009:	Substance Abuse/Dependency Evaluation:  Assessment: ETOH dependent.  Recommend Level III.

901127:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0700, 901007 to 1530, 901008.
	Award: Forfeiture of $150 per month for 1 month, extra duty for 10 days.  No indication of appeal in the record.

910707:	Applicant admitted to alcohol rehabilitation department with a diagnosis of alcohol dependence.

910816:	Applicant discharged from inpatient hospitalization with an aftercare treatment plan.

921219:	Applicant screened by CAAC as a result of a DUI 921028, with a BAC of .19.

930211:	Civil Conviction: General District Court, Traffic Division, Portsmouth Civil Center, Portsmouth, VA for violation of driving under the influence on 9210030 in Portsmouth, VA.
Sentence:  Fine $500.00, jail for 60 days, license suspended for 3 years.

930516:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930517:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930525:	Substance Abuse/Dependency Evaluation:  Assessment: Alcohol dependent.  Diagnosed as alcohol dependent October 1990.  Completed Level II.  Now has had a relapse.  Being separated. Recommendation: Level III rehab at VA facility on patients own accord.

930526:	Applicant declined VA in-patient treatment.

931004:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931013:	BUPERS 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 19931014 under other than honorable conditions for misconduct due to 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 (NJP) for violation of UCMJ Article 86 (Unauthorized absence) and two civil convictions for Driving Under the Influence (DUI).  A DUI charge is considered a serious offense. 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 upgrade to his characterization of service.  Relief denied.

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Relief not warranted.

The following is provided for the edification of the Applicant.  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, certification of non-involvement with civil authorities, and alcohol rehabilitation.  The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.   

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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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