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

FOR OFFICIAL USE ONLY

   ex-BM3, USN
Docket No. ND05-01158

Applicant’s Request

The application for discharge review was received on 20050711.  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 documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051215.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I would just like to say that I had served my country with honor at home and abroad in war and peace.  My evaluations show that I was a 4.0 Sailor and I was proud to serve in our Navy.  Yes I made mistakes, the majors one being alcohol abuse.  What many failed to realize that alcoholism is a disease.  I had seen many of my superiors with this same disease.  Even though I had this problem I still always tried to do what I was tasked with.  All I’m asking after 9 years to reconsider that discharge.  I think I did a pretty good job and served under some good people accept at the time I spent at the 1st LT division.
Overall my time in the Navy would show that I was a good sailor.  All I’m asking for is a general discharge.  I think showed that I’m an honorable person but as I said I made some mistakes, but I suffered for them.  I still miss the Navy and probably always will.”

Documentation

Only the service and medical records was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19860828 – 19860922		COG
	Active:   USN 			19860923 – 19900921		HON

Period of Service Under Review:

Date of Enlistment:  19900922		Date of Discharge:  19960206

Length of Service (years, months, days):

	Active:    05  04  15  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:	3 days
	Confinement:			None

Age at Entry:  37

Years Contracted:  4 (18 month extension)

Education Level:  12				AFQT:  80

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.97 (7) 		Behavior:  3.94 (7) 		OTA:  3.97

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Combat Action Ribbon, National Defense Service Medal, Good Conduct Award, Battle “E” Ribbon.

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

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

Chronological Listing of Significant Service Events: 

900922:	Reenlisted this date for a term of 4 years. 

920204:	Applicant self-referred for Navy Alcohol and Drug Abuse rehabilitation.
		Program.

920210:	Medical evaluation found applicant to be alcohol dependent.  Arrived at CAAC, BAC .083.

920213:	Applicant present for labwork results.  Detect ETOH on breath, to MACP for breathalyzer =.014.  LPO to notify command.

920218:	Applicant admitted to ARC Norfolk for Level III treatment.  A medical examination was performed on admission and was remarkable for BAC of .057.

920423:	ARC Treatment Summary:  Applicant discharged from ARC Norfolk on 920327, Level III treatment successfully completed.  Applicant to continue in an aftercare program.

930605:	Applicant arrested for driving under the influence after the vehicle he was driving struck a parked police car.  Applicant’s BAC determined to be .37.  Three minor children were present in the car with him.

930915:	Civil Conviction:  General District Court, Traffic Division, Norfolk, VA for Driving Under the Influence.
Sentence:  Fined $350.00, $26.00 court costs, 90 days in jail (suspended), Operators permit suspended for 12 months, assigned to NASAP program.

940120:	Applicant failed the Physical Readiness Test for the cycle ending October 1993, Applicant placed on command level I weight control regimen.

940524:	Applicant to unauthorized absence at 0800 on 940524.

940527:	Applicant from unauthorized absence at 1100 on 940527(3 days/apprehended).

940601:	Applicant to unauthorized absence at 0730-1100 on 940601.

940720:	NJP for violation of UCMJ, Article 86 (2 specs):
	Specification 1: UA from on about 940524 until on or about 940527.
	Specification 2: UA on or about 0730-1100, 940601.
	Award:  Reduction to E-4 (suspended for 6 months).  No indication of appeal in the record.

940721:	Retention Warning:  Advised of deficiency (As a result of CO’s NJP of 940720 for violation of UCMJ, Article 86-Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940803:	Applicant extended his enlistment for 6 months this date.

950209:	Applicant extended his enlistment for 12 months this date, total aggregate of 18 months.

950309:	Applicant successfully completed the Personal Responsibility and Values Education Training (PREVENT) course this date.

950818:	Applicant picked up by Portsmouth Police while on a working party, BAC .33.

950823:	Applicant considered an alcohol program failure, determined to have no potential for further service.

950905:	Report of Alcohol on Applicant’s breath, BAC .001.

950914:	NJP for violation of UCMJ, Article 112: (2 specs).
Specification 1: Drunk on duty on or about 950818
Specification 1: Drunk on duty on or about 950910.
	Award:  Forfeiture of $250.00 per month for 2 months, restriction and extra duty for 45 days (suspended for 3 months), reduction to E-4.  No indication of appeal in the record.

950914:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due to commission of serious offense, and misconduct due to civil conviction as evidenced by service record entries.

951004:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

951114:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, misconduct due to civil conviction, and has failed alcohol abuse rehabilitation, that separation was warranted , and recommended discharge under other than honorable conditions.

951130:	Commanding Officer, Naval Station, Norfolk recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure, misconduct due to commission of a serious offense and misconduct due to civil conviction.  Commanding Officer’s comments:  “BM3 C_ (Applicant) was processed in accordance with reference (a) when he was diagnosed as being alcohol dependent which disrupted his efforts in being productive member of the naval service.  BM3 C_’s (Applicant) multiple violations of the UCMJ coupled with his civil conviction is a clear indication that he is not willing to conform to the rules and regulations that govern his conduct, and will continue to have reckless disregard for his defiance towards lawful authority.  Therefore, I concur with the board members’ finding and recommendation that BM3 C_ (Applicant) be separated from the naval service with an Other Than Honorable discharge.”

960116:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960206 by reason of misconduct due to commission of a serious offense (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).  

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 a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by repeated alcohol incidents including driving under the influence of alcohol with children in his vehicle, and drunk on duty twice, including once while driving a working party.  The evidence of record indicates that the Applicant was sent to alcohol rehabilitation twice, including intensive inpatient treatment and a PREVENT course, yet after each period of rehabilitation, the Applicant’s alcohol related misconduct continued.  This misconduct resulted in civilian conviction for DUI and NJP proceedings for two violations of UCMJ Article 112 for drunk on duty.  Under applicable regulations, a violation of UCMJ Article 112 is considered a serious offense.  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.

The Applicant implies that his misconduct was the result of the disease of alcoholism.  Notwithstanding the veracity of his claims, alcoholism will not normally excuse a servicemember from legal liability for his misconduct, unless the Applicant can show a lack of mental responsibility through the presentation of substantial and credible evidence.  The evidence of record failed to demonstrate that the Applicant was unable to appreciate the nature and quality or the wrongfulness of his acts.  As such, the Board presumed that the Applicant was responsible for his misconduct and concluded that he should be held accountable for his actions.  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), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 112, drunk on duty.

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