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

FOR OFFICIAL USE ONLY

  ex-SKSN, USN
Docket No. ND05-01368

Applicant’s Request

The application for discharge review was received on 20050818.  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 before the Board in the Washington, D.C. Metropolitan area . In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060421.  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 civil conviction.

 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Sir was separated from the Navy (OTH) due to civilian conviction(s).  DUI x 2.  I was sent to rehab for four (4) weeks treatment and since then, am alcoholic free.  I work at the bank as a teller and am looking forward to improve my life.  By continuing my educational goal. And have a healthy family lifetime.  Furthermore, find a better-paid job to financially improve my status.  Sir in light of the above analysis, I respectfully requesting a review of my discharge to honorable.”   “Sir in support of this application I will attach documents of testimonies of my co-worker/shipmate statement about my performance towards a change in attitude. Sir I will also send a copy of my medical record that I diagnose of alcoholism and I completed the four weeks of rehab. Since I become a civilian I have no relapse. I will also send you a copy of my rehab certificate of completion.”

Representative submitted no issues.

Applicant’s Remarks:  (Taken from the DD Form 293.)

Sir I am new a change person with greater interest to achieved better things. I have learned my lesson’s been kicked out of the U.S. Navy is a sad new to my friends, family & wife.  Now am trying to pursue my Bachelor’s Degree in accounting at College Park University of Maryland    Sir I will be very grateful if my request is taken into consideration.
No more alcohol for me “I learnt my lesson”

Documentation

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

Applicant’s DD Form 214
County of San Diego driving under the influence program - referral form, undtd
Superior Court of California, County of San Diego, Central Division court papers (4 pages)
Command DAPA Recommended Rehabilitation Treatment Aftercare Program, dtd June 2, 2004
Narrative summary alcohol treatment, dtd May 28, 2004
Character witness statement from SK1 O) B_, dtd September 29, 2004
Character witness statement from MMC L_ L. P_, dtd September 30, 2004
Character witness statement from SK1(AW) D_ L. E_, dtd October 1, 2004
Character witness statement from SK1 J_ O_, dtd October 1, 2004
Character witness statement from SK1 D_ B_, dtd October 1, 2004
Character witness statement from SK3 A. H_, dtd September 29, 2004
Character witness statement SK3 K_ R. M_, dtd September 29, 2004
Certificate of attendance, undtd
2005 Quarterly performance discussion, dtd August 25, 2005
Certificate of completion, undtd

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010815 - 20011105	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20011106		Date of Discharge:  20041203

Length of Service (years, months, days):

	Active:    03  00  28  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  6 days
	Confinement:		  None

Age at Entry:  26

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  67

Highest Rate:  SKSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)			Behavior:  3.0 (2)		OTA:  3.34

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events: 

020115:	Retention Warning:  Advised of deficiency (Failure to disclose total number of dependents.  Applicant and spouse were married on 15 April 1999.  Applicant’s daughter, H_ F_ J_, was born 06 June 1999.  Applicant’s wife and child currently reside with wife’s uncle in Virginia and uncle is assisting in their day today needs.  Counseled on the financial responsibilities required.  The information concerning the above disclosure was provided by Applicant’s voluntary statement of 11 November 2001.  Be advised that if the information provided is determined to be false, this page 13 may be considered void.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030926:	Applicant on unauthorized absence 0630-0907 on 030926.

031030:	NJP for violation of UCMJ, Article 86(Absence without leave and 107 (False official statement).
	Award:  Forfeiture of 5 days pay (suspended for 6 months), extra duty for 14 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

040524:	Civil Conviction:  California Superior Court for violation of California Vehicle Code 23152(b), DUI alcohol 0.08 or more.
Sentence:  Fine $1700.00, attend and complete First Conviction Program.  Imposition of sentence is suspended for 5 years.

040524:	Civil Conviction:  California Superior Court for violation of California Vehicle Code 23103(a), reckless driving.
Sentence:  Fine $950.00, enroll in Public Service Work Program (PSWP).  Imposition of sentence is suspended for 3 years.

040526:	Civil Conviction:  California Superior Court for violation of California Vehicle Code 23152(b), DUI alcohol 0.08 or more.
Sentence:  Custody of the Sheriff for 180 days, suspended for 5 years, fined $1700.00 and attend and complete Multiple Conviction Program.

040624:	NJP for violation of UCMJ, Article 86, unauthorized absence and Article 134, incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor.
	Date of offenses: 23 January 2004; 12 April - 13 April 2004; 21 April - 26 April 2004; and 1 May 2004.
	Award:  Forfeiture of $200 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

041019:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - pattern of misconduct, misconduct - commission of a serious offense and misconduct - civilian conviction.  

041019:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

041113:	Commanding Officer, USS NIMITZ (CVN 68) recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civilian conviction.  Commanding Officer’s comments:  “SKSN J_(Applicant) has developed an ongoing pattern of misconduct.  His episodes of misconduct include a period of unauthorized absence totaling a period of 6 days, incapacitation for performance of duties by wrongful indulgence in intoxicating liquor, and false official statement.  In addition, SKSN J_(Applicant) pled guilty before California Superior Court on two occasions to drunk driving and on one occasion to reckless driving.  He clearly has no regard for state laws or the Navy’s rules and regulations.  I most strongly recommend he be separated with a characterization of Under Other Than Honorable Conditions.”

041118:	Commander, Carrier Strike Group ELEVEN directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civilian conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041203 by reason misconduct due to civil conviction (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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided one quarterly evaluation from his employer and a certificate of training completion as documentation of his post-service.  Additionally, the Applicant provided 7 character witness statements providing evidence of his character while on active duty. The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 28 April 2005, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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, Article107 - false official statement and Article 111 – drunk driving.

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