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

FOR OFFICIAL USE ONLY

 ex-HA, USN
Docket No. ND05-01464

Applicant’s Request

The application for discharge review was received on 20050727.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by Disabled American Veterans. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060517.  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:

1. “My discharge was unfair because the command kicked me out when they didn’t think they could (or tried & failed to) convict me at CM, ASWAUTH.”

2. “Counseling requirements were not met or waived, ASWAUTH, [A50.02]”

3. “I was discharged before I was given much treatment, ASWAUTH, [A69.04]”

4.  I had combat service, ASWAUTH [A92.08]”   

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable discharge to Honorable.

The FSM served on active service from December 28, 1999 to October 26, 2004 at which time he was discharged due to Pattern of Misconduct. 

The FSM contends the current discharge is improper because he is a combat veteran; he was discharged before provided any treatment; and that his Command kicked him out when the could not Court Martial him.  Additionally the FSM has submitted character reference statement attesting to the FSM’s good conduct after discharge, but also there is a submittal from one of the FSM’s peers from active duty that reflects that the FSM was a good sailor who knew his duty. 

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Employment Reference ltr from HM1 P.F. C_, dtd July 23, 2004
Employment Reference ltr from B. L. M_, dtd July 23, 2004
Applicant’s DD Form 214 (2)
Letter of Recommendation for Psychiatry Technologist School
Evaluation Report & Counseling Record (3 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR 	19941122 – 19941206	COG
	Active:    USNR	19941207 – 19941221	ELS
	Inactive:  USNR (DEP)	19991118 – 19991227	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991228		Date of Discharge:  20041026

Length of Service (years, months, days):

	Active:    04  09  28  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  13 days
	Confinement:		  67 days

Age at Entry:  23

Years Contracted:  4 (12 month extension)

Education Level:  14				AFQT:  53

Highest Rate:  HM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.2 (5) 		Behavior:  2.5 (4) 		OTA:  3.27 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Good Conduct Medal, National Defense Service Medal, Presidential Unit Citation, Global War on Terrorism Expeditionary Medal (GWOTEM), M9 Pistol Qualification (Expert Medal).

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

991118:	Enlistment waiver for Entry Level Separation (Personality Disorder) approved

020208	Completed 2 day Alcohol Impact course at the Consolidated Substance Abuse Counseling Center.

020301	Arrested by Oceanside Police Department for DUI. Released with pending court date.

020610:	Applicant briefed on Commanding Officer 1st Medical Battalion, 1st FSSG Camp Pendleton policy on alcohol abuse. Applicant further advised that any violation of the alcohol abuse policy will not be tolerated, is considered a serious offense, and may result in disciplinary action and/or administrative separation processing.

031106	Applicant convicted by Superior Court of California, County of San Diego for DUI (BAC: .16). Punishment awarded: confinement credit for 20 days served, fined, probation, directed to complete multiple conviction program treatment or rehabilitation, and driving restrictions.

031210:	NJP for violation of UCMJ, Article 86:  Unauthorized absence on or about 031024 to on or about 031106 IHCA.
	Violation of UCMJ, Article 92: On 031023 HM3 M_ violated a lawful general regulation, to wit: OPNAVINST 5350.7 Drug and Alcohol Abuse Program Management for the Office of Chief of Naval Operations (CNO) and CNO (OP-9B) Claimancy.
	Award:  Forfeiture of $764 per month for 2 months (suspended for 6 months), CCU for 30 days (suspended for 6 months), reduction to E-3.  Appealed 031217. Appeal denied 040120.

040304:	NJP for violation of UCMJ, Article 86 and 92:  HN M_ was UA from his appointed place of duty on the afternoon of 040213, in accordance with the provision of (A) part V, para 6A, of the MCM, the loss of ½ months pay for 2 months, totaling $1528.00 is vacated.

040423:	Pre-trial confinement from 040423 to 040630 (67 days).

040630:	Special Court Martial
	Charge I:  violation of the UCMJ, Article 83.
	Specification:  HA M_ did, on or about 991228, procure enlistment in the Armed Forces by deliberate concealment of past misconduct. 
Pled: Guilty		Finding: Guilty
Charge II:  violation of UMCJ, Article 86.
	Specification:  HA M_ did, on or about 040213, fail to go to the appointed place of duty. 
Pled: Not Guilty	Finding: Withdrawn
Charge III:  violation of UMCJ, Article 91.
	Specification:  HA M_ did, on or about 040213, fail to obey a lawful order. 
Pled: Not Guilty	Finding: Withdrawn
Charge IV:  violation of UMCJ, Article 107.
Specification:  HA M_ did, on or about 990819, sign a false official document. 
Pled: Not Guilty	Finding: Withdrawn
Add Charge I:  violation of UMCJ, Article 86.
Specification:  HA M_ did, on or about 040422, fail to go to appointed place of duty.
Pled: Not Guilty	Finding: Withdrawn	
Add Charge II:  violation of UMCJ, Article 92.
	Specification:  HA M_ did, on or about 040421, wrongfully disobey a lawful order in going to Mexico with a Special Request Chit and was detained at the border for possible illegal activity.
	Pled: Guilty		Finding: Guilty
Add Charge III:  violation of UMCJ, Article 134.
	Specification:  HA M_ did, on or about 040422, fail to bring and present alien, to appropriate immigration officer. 
Pled: Not Guilty	Finding: Withdrawn
2nd Add Charge:  violation of UMCJ, Article 112a.
	Specification:  HA M_ did, on or about 040422, wrongfully use cocaine.
Pled: Not Guilty	Finding: Withdrawn
	Sentence:  Confinement for 69 days and reduction to E-2.
	CA action 040630:  Sentence approved and ordered executed, military judge awarded 69 days of pretrial confinement credit for time served in pretrial confinement.

040914:	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 .

040914:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to submit statements to the separation authority and the right to obtain copies of the documents used to support the basis for the separation.

040923:	Commanding Officer, 1st Medical Battalion, recommended discharge under other than honorable conditions by reason of misconduct – pattern of misconduct. Commanding Officer’s comments:  “Per the reference, I recommend that Hospitalman Apprentice C_ C_ M_ be administratively separated due to his long history of misconduct. His failure to disclose significant misconduct prior to his enlistment in the Naval service is further evidence of his failure to take responsibility for his own actions. This type of behavior and history is not conducive to good order and discipline. I recommend that Hospitalman Apprentice C_ C_ M_ be separated from the United States Navy with a characterization of service Under Other Than Honorable.”

041014:	GCMCA, Commander, 1st Force Service Support Group (Rear), directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

041022	Completed 17 days of outpatient treatments at the Consolidated Substance Abuse Counseling Center. The Applicant exited the program as a treatment failure, due to lack of motivation and sincere effort as manifested by unauthorized absence on his last day of treatment.
	Exit diagnosis: (1) Alcohol Abuse
			(2) Substance Related Incident: positive UDS for cocaine

041026:	DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct pattern of misconduct, per MILPERSMAN 1910-140. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041026 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 alleges impropriety in that he was administratively separated after the command failed to convict him at court martial. The Applicant pled guilty at special court martial proceedings, on 040630, to violation of UCMJ Article 83 – fraudulent enlistment and Article 92 – disobeying a lawful order. In response to the guilty plea and in accordance with a pretrial agreement, the command withdrew 6 other charges. The Applicant pled guilty and was found guilty at Special Court Martial. Additionally, the Applicant waived his right to an Administrative Separation Board on 040914, accepting his separation. Relief is not warranted.

The Applicant alleges impropriety in that “counseling requirements were not met or waived.” Members may be separated in accordance with reference (A) when, during the current enlistment, they have two or more nonjudicial punishments, court martial, or civil convictions (or combination thereof) and member must have violated a NAVPERS 1070/613 warning. The Applicant was found guilty at 2 nonjudicial punishment proceedings and 1 special court martial and had 2 civil convictions. He received a NAVPERS 1070/613 warning on 020610 in which he was told “any violation of the alcohol abuse policy will not be tolerated, is considered a serious offense, and may result in disciplinary action and/or administrative separation processing.” This warning was violated when the Applicant was convicted of driving under the influence on 031106. Relief is not warranted. 

The Applicant alleges impropriety in that he “was discharged before I was given much treatment.” The Applicant completed 17 days of outpatient treatment at the Consolidated Substance Abuse Counseling Center on 041022. The Applicant exited the program as a treatment failure, due to lack of motivation and sincere effort as manifested by unauthorized absence on the last day of treatment. The Applicant was offered treatment for substance abuse but was not motivated for this treatment. Relief is not warranted.

The Applicant and his representative allege inequity in that the Applicant had combat service and was a good sailor. As evidence, the Applicant provided 2 letters of reference from sailors who worked with him in service. 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 1 retention warning, 2 nonjudicial punishment proceedings for violations of Articles 86 (2 specs) and 92 (2 specs) of the UCMJ, and special court martial proceedings for violations of Articles 83 and 92 of the UCMJ. Additionally, the Applicant had 2 civil convictions for drunk driving. 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 and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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 92 – failure to obey order or regulation, Article 83 – fraudulent enlistment, and Article 111 - drunken 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