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

  
 ex-ATAA, USN
Docket No. ND05-00745

Applicant’s Request

The application for discharge review was received on 20050330.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20050713.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Respectfully request upgrade in discharge from OTH to Honorable.  I was young, and made a bad decision not to go to the Navy’s rehabilitation program following an alcohol related incident. I felt at the time I shouldn’t go because I was not an alcoholic.  I did not realize at the time the serious nature of the situation, or the repercussions of an OTH discharge.  All of the hard work was thrown away because of my bad decision.  It is embarrassing and is a major blot in my past.  If this is possible, please upgrade my discharge.  Thank you.”

Documentation

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

None were submitted by Applicant

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900425 - 900808	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900809		Date of Discharge:  930126

Length of Service (years, months, days):

	Active:    02  05  18
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  74

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.30 (2)		Behavior:  3.10 (2)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

921015:	Applicant struck by a motor vehicle walking while under the influence of alcohol.

921108:	Fitness for Duty Evaluation:  Applicant drank 5 beers by 1520, Command notified of elevated BA (0.3).  Diagnosed:  ETOH Intoxication.

921109:	Applicant’s plane captain for FA-18C type plane designation vacated due to intoxicated while performing his duties.
  
921113:	Medical evaluation/CAAC screening indicates Applicant was found alcohol dependent, recommended for Alcohol Rehabilitation Level III treatment.
   
921124:	NJP for violation of UCMJ, Article 112:  Drunk on duty.
	Award:  Forfeiture of $440.00 pay per month for 2 month(s), restriction to USS INDEPENDENCE for 30 days, reduction to E-2.  No indication of appeal in the record.

921203:	Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense as evidenced by the commission of an offense for which a punitive discharge is authorized under the Manual for Court-Martial) (NJP 921124).  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

921203:	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.  Applicant did not object to the separation.

921221:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Comments of the Commanding Officer (verbatim):  “SNM has had four alcohol related incidents within the past fourteenth months.  He denies that he has a problem with alcohol.  Because of his refusal to deal with his alcohol problems and because of four incidents, I find no future for ATAA J_ (Applicant) in the United States Navy.  Recommend general discharge.”

921228:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930114:	Applicant offered and declined Veterans Administration Alcohol Rehabilitation Treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19930126 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by four incidents of alcohol related misconduct, including an incident of drunk on duty while a plane captain at Strike Fighter Squadron 192.  This misconduct resulted in nonjudicial punishment proceedings for a violation of UCMJ Articles 112.  Under applicable regulations, a violation of UCMJ Article 112 is considered a serious offense.  Additionally, the Applicant was diagnosed alcohol dependent and refused rehabilitation treatment.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

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

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112, drunk on duty, if adjudged at a Special or General Court-Martial.

C.  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.

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

E.  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