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

FOR OFFICIAL USE ONLY

 ex-BMSN, USN 
Docket No. ND05-01079

Applicant’s Request

The application for discharge review was received on 20050614.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing discharge review before a traveling panel.  The Applicant did not designate a representative on the DD Form 293.  On 20051103, the Applicant was advised that the Board does not travel, and all personal appearance hearings are conducted at the Washington Navy Yard. On 20051120, the Applicant elected to appear before the Board in the Washington DC Area. On 20060322, the Applicant cancelled his hearing and converted to a documentary review. Applicant was advised he was near his 15-year limit. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 200060406.  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 by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Veteran service period was extended at the request and for the convenience of the Governemnt. Veteran just prior to being ship to the Gulf in 1/91 Veteran was assigned to attend a 49 day treatment program for alcohol treatment at Miramar in CA the Veteran was then sent to his ship with orders to attend on ship alcohol abuse meeting.  The veteran was assigned to a Team 1A responsible for the rescue of Marines as the meeting were held during the veterans normal working hours the veterans choice to attend to his duties rather that to attend the meeting regularly.  The Veterans duties with Team 1A  were in addition to his regular duties and the Veteran chose however unwisely to attend his duties rather than to attend the meeting.”

Documentation

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

Applicant’s DD Form 214
Service Related Documents (18 pgs)
Employment Recommendation Letter from D_ F. C_, Cellar Supervisor, Arciero Winery dtd December 10, 1994
Server Performance Review dtd November 16, 1992
Certificate of Outstanding Physical Fitness for testing period 20-30 August 1990
Outstanding Performance Award dtd December 7, 1990
Applicant’s statement in support of upgrade dtd April 20, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19861114 – 19861118		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19861119		Date of Discharge:  19910621

Length of Service (years, months, days):

	Active:    04  07  03  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence: None
	Confinement:		 None

Age at Entry:  18 

Years Contracted:  4 (14 month extension)

Education Level:  11				AFQT:  59/98

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (7) 		Behavior:  3.2 (7) 		OTA:  3.27

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon (2), Battle E Ribbon, National Defense Service Ribbon, South Asian Service Medal.

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

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

Chronological Listing of Significant Service Events: 

861120:	Applicant briefed on Navy's policy of drug and alcohol abuse.

871113:	NJP for violation of UCMJ, Article 134:  Communicating a threat 87NOV11.
	Violation of UCMJ, Article 117:  Provoking speeches and hand gestures 87NOV11.
	Award:  Forfeiture of $200.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

871113:	Retention Warning:  Advised of deficiencies, Article 134-Communicating a threat, and Article 117-provoking hand gestures on 11 November 1987.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871210:	NJP for violation of UCMJ, Article 128:  Simple assault-by pulling out a knife on AN M_ on 9 December 1987.
Award:  Forfeiture of $300.00 pay per month for 1 month.  No indication of appeal in the record.

871210:	Retention Warning:  Advised of deficiency, Article 128-Simple Assault-pulled out a pocket knife on AN M_ in AFT vehicle stow on 9 December 1987, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.\
880315:	Applicant referred by DAPA for ETOH Eval

890615:	NJP for violation of UCMJ, Article 134:  Carrying concealed weapon; two pellet guns and one pair of nunchakus on 19890613.
	Award:  Forfeiture of $100.00 pay per month for 2 months, restriction and extra duty for 20 days, reduction to E-2 (suspended for 4 months).  No indication of appeal in the record.

890616:	Psychological evaluation

901214:	ETOH Evaluation

901226:	Applicant reviewed and signed his Aftercare program agreement.

901231:	Applicant completed Level III Rehabilitation at the Naval Alcohol Rehabilitation Center. Applicant notified that involvement in a subsequent related incident or failure to satisfactorily complete any aspect of treatment in the Aftercare program will be grounds for administrative separation from the United States Navy as a rehabilitation failure in accordance with OPNAVINST 5350.4

910506:	Applicant failed to attend weekly group Aftercare session.

910513: 	Applicant failed to attend weekly group Aftercare session.

910531:	NJP for violation of UCMJ, Article 117: Provoking speech toward BM3 W_ on 91MAY11, to wit: “You are a p_ and you had no balls” or words to that effect.
Violation of UCMJ, Article 128: Unlawfully push BM3 W_ in the chest with his hand.
Violation of UCMJ, Article 134: Drunk on station on 91MAY11.
	Award:  Forfeiture of $595.00 pay per month for 1 month, reduction to E-4.  No indication of appeal in the record.

910603:	Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of serious offense as evidenced by carrying concealed weapon (two pellet guns and one pair of nunchakus) on 19890613, assault consummated by a battery on 19910511, and communicating a threat on 19871111; misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ within the current enlistment; and alcohol abuse rehabilitation failure. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.

910604:	Applicant advised of rights and having consulted with counsel, elected to obtain copies of the documents used to support the basis for the separation and objected to the separation.

910604:	Commanding Officer, USS New Orleans, (LPH-11) recommended discharge under other than honorable conditions by reason of misconduct due to commission of serious offense as evidenced by carrying concealed weapon (two pellet guns and one pair of nunchakus) on 19890613, assault consummated by a battery on 19910511, misconduct due to a pattern of misconduct as evidenced by three or more punishments under the UCMJ within your current enlistment; and alcohol abuse rehabilitation failure as evidenced by an alcohol incident while in an aftercare program on 19910511.  Commanding Officer’s comments:  “BM3 S_ has no desire to modify his behavior.  He lacks the motivation to be a value to the Navy.  No potential for further naval service.  He is recommended for immediate ADSEP with an other than honorable discharge.”

910603- 	Applicant sent for Psychological evaluation. Applicant was hospitalized 910608	for five days. Competent medical authority saw the Applicant. LT J_ S_, 
                        MC, USNR comments: “Active suicide ideation with specific methods 
                        after hearing voices “telling him to jump off ship”. Concerns centered 
                        around pending administrative separation after failing Level III Alcohol 
                        Rehab.” Applicant’s condition at transfer/discharge from clinic was stable.

910607:	BUPERS, directed the Applicant's discharge under other than honorable conditions by reason of misconduct pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910621 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions.  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).  

The Applicant contends that he was a 4.0 sailor. The NDRB advises the Applicant’s that his evaluation grades, service awards, and overall service records do not mitigate his misconduct.  There is credible evidence in the record that the Applicant did violate the UCMJ and that he was accountable for his actions.  This evidence of misconduct warranted a characterization of service normally under less-than-honorable conditions.  The Board recognizes that serving in the Navy is very challenging but it must be noted that most Sailors serve honorably and well and, therefore, earn honorable discharges.  In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The Board found the Applicant’s service is equitably characterized as under other than honorable conditions due to the Applicant's three nonjudicial punishments for violations of UCMJ Article134 (communicating a threat), Article 117 (Provoking hand gestures), Article 128 (simple assault), Article 134 (carrying a concealed weapon), and two-documented instances of failure by the Applicant to attend weekly group aftercare meetings.  The Applicant’s conduct falls far short of that required for an upgrade of his characterization of service. Relief on this basis is denied.

The Applicant contends that had the government not extended him he would have received an honorable discharge. The Board found no impropriety in the Government extending the Applicant’s enlistment. As part of the enlistment contract, a service member is advised that under certain circumstances, a member may be extended for the convenience of the government. The NDRB found that the Applicant was notified and acknowledged his contractual obligations and that he failed to meet the requirements of his contract with the U.S. Navy, therefore relief is not warranted. 

The Applicant states that he was very busy during his Gulf War deployment, with the 1-Alpha Team (embarkation and debarkation of Marines), loading of supplies and ammo, underway fuel replenishment, watch standing, and duties as assistant Lead Petty officer of a 34 man team, when he unwisely chose to fulfill those duties instead of attend his alcohol abuse meetings. The NDRB acknowledges the Applicant's regret and lack of judgment in his choice to not attend his mandatory alcohol abuse meetings. However, the record shows that the applicant was advised about the Navy’s drug and Alcohol policy (19861120), the applicant completed Level III Rehabilitation at the Alcohol Rehabilitation Center, and he signed his aftercare program plan. The record also shows that he was properly notified that involvement in a subsequent related incident or failure to satisfactorily complete any aspect of treatment in the Aftercare program would be grounds for administrative separation (19901231).  The Board discovered no impropriety after a review of the Applicant’s case.  Relief on this basis is not warranted
 
The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 sufficient post-service documentation for the Board to consider.  Relief denied.

The NDRB advises the Applicant that since he was unable to appear at his scheduled 20060405 personal appearance hearing and his right to review by the NDRB will expire on 20060620, the Applicant has exhausted his opportunities for review by the NDRB. The Applicants only recourse is to petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134 (communicating a threat) and Article 134 (carrying a concealed weapon).

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