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

FOR OFFICIAL USE ONLY

  ex-AA, USN
Docket No. ND05-01558

Applicant’s Request

The application for discharge review was received on 20050920.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060717.  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 General (Under 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 attached document/letter: 

“I volunteered to serve my country in the United States Navy during a time of war.  I served in the Navy in the capacity assigned from May 14, 2002 until August 20, 2004.

I was discharged from the Navy under a general (under honorable conditions) discharge characterization as a result of “the commission of a serious offense”.   I respectfully request that my discharge characterization be reviewed and that it be changed to honorable.

My “serious offense” was an alcohol related misconduct in which no one was injured or any property damaged.  I acknowledge that my conduct was improper but point out that other individuals with much more serious infractions than my own were not discharged as a result of their offense.

My alcohol problem(s) was a result of (or seriously contributed to) but my service in the Navy, yet I was not offered rehabilitation or treatment for the problem.  I believe that I was arbitrarily dismissed without careful review of my condition and situation.

I did not want to be discharged from the Navy.  I retained an attorney (W_ H. C_ [phone number delete]) at considerable expense to represent me when it became apparent that I could not adequately defend my own position.  Because I did not understand the process, I retained counsel too late in the proceedings to affect the result.  The point, however, is that I did not seek dismissal from the Navy and was fighting my discharge.  I was proud to serve my country.  My family flew the US Navy flag as well as the American flag outside our home the entire time I was in the service.

In conclusion, I believe that my dismissal and the characterization of my discharge as less than honorable were improper.  My intentions in volunteering to serve my country were entirely honorable and my misconduct relatively minor.  I respectfully request that my discharge characterization be reviewed and that you will see fit to change in to an honorable discharge.”

Documentation

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

Applicant’s DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020424 – 20020513		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020514		Date of Discharge:  20040820

Length of Service (years, months, days):

	Active:    02  03  07  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  19 

Years Contracted:  4 

Education Level:  11				AFQT:  33

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3) 		Behavior:  2.0 (3) 		OTA:  2.72

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

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

020422:	United States Navy Illicit Behavior Screening Certificate: Applicant acknowledged having been convicted of one alcohol related offense.

020424:	Pre-service waiver for Chart “C” (DUI) 1x offense granted.

030902:	DUI citation for driving under the influence of alcohol  (DUI) on Tinker Air Force Base, Oklahoma. [Extracted from CO’s letter dtd 040820.]

030903:	Mental Health Clinic, Tinker AFB, OK, Substance Abuse Assessment Summary: Applicant seen for alcohol incident.  Based upon Applicant’s self-report, substance abuse history and collateral data no diagnosis was made.  Applicant’s ADAPT Regimen: Attend Substance Awareness Seminar.
	
031001:	Retention Warning:  Advised of deficiency (False Official Statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031001:	NJP for violation of UCMJ, Article 107: False official statements.
	Violation of UCMJ, Article 111: Drunken or Reckless Operations of Vehicle.
	Award:  Forfeiture of $574.40 pay per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days (suspended for 6 months), reduction to next inferior pay grade (suspended for 6 months).  No indication of appeal in the record.

031020:	Applicant completed Substance Awareness Seminar.

040630:	Valley Brook Police Department Arrest Report: Applicant arrested for public intoxication.

040704:	Mental Health Clinic, Tinker AFB, OK Substance Abuse Assessment Summary:  Applicant seen for alcohol incident.  Applicant arrested on 040630 and charged with Public Intoxication.  Based on Applicant’s self-report, substance abuse history, and collateral data, no characterization or diagnosis was made.  Applicant’s ADAPT Regimen: Substance Awareness Seminar and Reorientation scheduled for Aug 04.

040729:	NJP for violation of UCMJ, Article 112: Drunk on Duty.
Violation of UCMJ, Article 134: Disorderly Conduct, Drunkenness.
Award:  Forfeiture of $668.85 pay per month for 2 months, restriction and extra duty for 45 days, reduction to next inferior pay grade.  No indication of appeal in the record.

040806:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct commission of a serious offense and misconduct pattern of misconduct.

040806:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040820:	Commanding Officer, Fleet Air Reconnaissance Squadron THREE directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct commission of a serious offense.  Commanding Officer’s comments:  “On 2 September 2003, AA N_ (Applicant) was involved in an alcohol related incident where he was found guilty of Driving Under the Influence (DUI) and making False Official Statements.  On 30 June 2004, AA N_ (Applicant) was involved in another alcohol related incident where he was found guilty of Drunk on Duty and Disorderly Conduct.  The command has provided various forms of assistance and help for his alcohol problems; however, AA N_ (Applicant) continues to have alcohol related incidents.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040820 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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 his discharge was improper since his “serious offense was alcohol related” and “[he] was not offered rehabilitation or treatment for the [alcohol] problem.”  The Applicant’s records reveal that he received Substance Abuse Assessments on 20030903 and 20040704 at the Mental Health Clinic, Tinker AFB.  Based on the Applicant’s self-report, substance abuse history, and collateral data, no characterization or diagnosis was made.  On each occasion, the Applicant was instructed to attend the Substance Awareness Seminar.  To permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  Despite the Applicant’s contention, the Board found no impropriety or inequity that might afford him relief.  Relief denied. 

The Applicant further contends that his discharge was inequitable because his misconduct was relatively minor.  The Applicant was discharged with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of his two Nonjudicial Punishment (NJP) proceedings on 20031001 and 20040729.  The Applicant was awarded NJP for violation of UCMJ Article 107 (False official statements); Article 111 (Drunken driving), Article 112 (Drunk on duty), and Article 134 (Disorderly conduct, drunkenness).  These are not minor offenses.  In fact, violation of Articles 107, 111, and 112 are considered serious offenses since 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.   Typically, the characterization of service for members involved in misconduct due to commission of a serious offense is under other than honorable conditions.  On 20040820, the Commanding Officer, Fleet Air Reconnaissance Squadron THREE directed the Applicant’s discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.  Based upon the above review, the Board concluded that 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 post-service accomplishments or any other evidence related to the discharge at that time.  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 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION 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 107 (False official statement), Article 111 (Drunken driving), and 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