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

FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND06-00584

Applicant’s Request

The application for discharge review was received on 20060303.  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 20061214.  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.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 13, Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded Or Authorized should read:  “NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY/MARINE CORPS OVERSEAS SERVICE RIBBON.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“To:  Navy Council of Personnel Boards
Subj: Record Review - S_ R. H_(Applicant)

Dear Sir:

Attached you will find my application for discharge upgrade and my accomplishments in support of my post military life.  While first on active duty my family and military life were not in harmony.  As time went by both improved but my need to connect more with my family seemed to take hold.  My trouble came from drinking and not attending required military DAPA (AA) classes.  As you can see now I’ve completed, and remain active in all my civilian AA program.  It is my hope you will acknowledge my hard work to improve my life.  My goal is to return to active duty some day.  Your help in this upgrade request will be my first step in that direction.  Most important I want to apologize to those I might have hurt or let down while in service.  I’ve come a long way in the past two years.  My decision making skills have improved and I hope to rejoin my military commitment someday.  Thank you for your consideration.

Sincerely,
[signed]
S_ R. H_”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 1 and 4)
Verification of volunteer service from City of Ojai, Recreation Department, dtd 	December 20, 2005
Alano Club AA notes (32 pages)
Job reference from K_ D_, undated
Job reference from R_ W_, dtd August 5, 2005
Regional Fugitive Task Force Catch of the Week for the week of March 21, 2005
One hundred and forty-four pages from Applicant’ service/medical record
Evaluation Report and Counseling Record for period July 16, 2003 to October 24, 2003 	(Front page only)
Evaluation Report and Counseling Record for period December 7, 2003 to February 13, 	2004 (Front pages only) (2)
Evaluation Report and Counseling Record for period December 19, 2002 to July 15, 	2003 (Front page only)
New employee review, dtd May 13, 2006
Applicant’s monthly performance evaluation from Nosler Incorporated, dtd March 2006
Applicant’s monthly performance evaluation from Nosler Incorporated, dtd April 2006
Applicant’s monthly performance evaluation from Nosler Incorporated, dtd May 2006
Applicant’s monthly performance evaluation from Nosler Incorporated, dtd July 2006
Applicant’s police record check from the police department in Bend, OR, dtd October 	30, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020722 - 20020827	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20020828		Date of Discharge:  20040225

Length of Service (years, months, days):

	Active:    01  05  28
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4

Education Level:  12				AFQT:  36

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (3)*		Behavior:  1.7 (3)*		OTA:  2.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Navy/Medal Corps Overseas Service Ribbon.

*Third set of Performance and Behavior marks extracted from supporting documents submitted by the Applicant (page 1 only)

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: 

020719:	Pre-service waiver for possession of marijuana granted.

031024:	NJP for violation of UCMJ, Article 117: Provoking speeches or gestures.
	Specification: In that Airman Apprentice S_ R. H_(Applicant), U.S. Navy, USS KITTY HAWK, on active duty, did, on or about 030929, wrongfully use provoking words, to wit: “S--- my d---”, ‘You little f------ 
	c----s-----r”, and, “You f------- f-------”, or words that effect towards USS KITTY HAWK security personnel.
	Violation of the UCMJ, Article 134: Threat, Communicating.
	Specification: In that Airman Apprentice S_ R. H_, U.S. Navy USS KITTY HAWK, on active duty, on or about 030929, wrongfully communicate to USS KITTY HAWK security personnel, a threat, to wit.: “I’m gonna kill you all m-----f------,” or words to that effect.
	Violation of the UCMJ, Article 134: Disorderly conduct, drunkenness.
	Specification: In that Airman Apprentice S_ T. H_ U.S. Navy, USS KITTY HAWK on active duty was, on or about 030929, drunk and disorderly, which conduct was prejudicial to good order and discipline.
	Award:  Forfeiture of $600.00 per month for 2 months (1 mo susp X 6 mos), restriction and extra duty for 30 days, reduction to E-1 (susp x 6 mos).  No indication of appeal in the record.

031024:	Retention Warning:  Advised of deficiency (CO’s NJP held this date for: VUCMJ, Art 117 - Provoking speeches or gestures, VUCMJ, Art 134 - Threat, communicating, and VUCMJ, Art 134 - Disorderly conduct, drunkenness.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031112:	Psychological evaluation at USS KITTY HAWK Medical Department by T- S_, LT, MC, USNR, Ship’s Psychologist and A_ A. B_, HM2, USN, Psychiatric Technician.
	Pt (Applicant) stated he is feeling Hopeless.  Pt reported severe fatigue.  Decreased need for sleep.  Strange or unusual thoughts and hallucinations.  Pt also stated that he “feels pick on” and can’t trust anyone around him.  Pt states that he has been feeling this way ever since as a kid.  Pt stated he “everyone around him is to get him (kill him)”.  Pt states that he has no problems with alcohol/drugs.  Pt stated that he is here of his own free will and would like some help but doesn’t know how psychology can help.  Pt stated that he has had suicidal thoughts since a kid but denied any plans or attempts.  Pt also stated that he feels anger towards everyone he sees.
	AXIS I: Rule out paranoid disorder vs delusional disorder.
	AXIS II: Rule out paranoid schizophrenia.
	AXIS III: None.
	AXIS IV: Job dissatisfaction.
	AXIS V (current): 60/100 - mild symptoms.
	Safety: Pt is considered fully competent to be discharged to his own custody and does not present a danger to self or others.
	Fitness for duty:  Fit for full duty.
	Plan:
	1. Advised to relax by doing activities he enjoys, such as exercising.
	2. Advised to use deep breathing relaxation techniques.
	3. Follow up with LT S_ on 031114 at 1030.

031203:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 89: Disrespect toward a superior commissioned officer.
	Specification 1: In that Airman Apprentice S_ R. H_(Applicant), U.S. Navy, USS KITTY HAWK, on active duty, did on board USS KITTY HAWK, at Guam, on or about 031201, behave himself with disrespect toward CDR E_ R. W_, his superior commissioned officer, then known by the said Airman Apprentice S_ R. H_ to be his superior commissioned officer, by saying to him “Motha F--- you, D--- Head, F--- you, you bitch and go to hell, or words to that effect.
	Specification 2: In that Airman Apprentice S_ R. H_, U. S. Navy, USS KITTY HAWK, on active duty, did on board USS KITTY HAWK, at Guam, on or about 031202, behave himself with disrespect toward LTJG Y_ I. E_, his superior commissioned officer, then known by the said Airman Apprentice S_ R. H_ to be his superior commissioned officer, by saying to her “Motha F--- you, D--- Head F--- you, you bitch, and go to hell” or words to that effect.
	Specification.3: In that Airman Apprentice S_ R. H_, U.S. Navy, USS KITTY HAWK, on active duty, did on board USS KITTY HAWK, at Guam, on or about 031201, behave himself with disrespect toward CDR E_ R. W_, his superior commissioned officer, then known by the said Airman Apprentice S_ R. H_ to be his superior commissioned officer, by spitting toward CDR W_.”
	Specification 4: In that Airman Apprentice S_ R. H_, U.S. Navy, USS KITTY HAWK, on active duty, did on board USS KITTY HAWK, at Guam, on or about 031202, behave himself with disrespect toward LTJG Y_ I. E_, his superior commissioned officer then known by the said Airman Apprentice S_ R. H_ to be his superior commissioned officer by “Spitting towards LTJG Y_ I. E_.
	Charge II: Violation of the UCMJ, Article 91: Insubordinate conduct toward a petty officer.
	Specification 1: In that Airman Apprentice S_ R. H_, U.S. Navy, USS KITTY HAWK, on active duty, did on board USS KITTY HAWK, at Guam, on or about 031126, bit Aviation Boatswain’s Mate (Aircraft Handling) Second Class R_ G_, a petty officer, then known to the said Airman Apprentice S_ R. H_, U.S. Navy, to be a superior petty officer.
	Specification 2: In that Airman Apprentice S_ R. H_, U.S. Navy, USS KITTY HAWK, on active duty, did on board USS KITTY HAWK, at Guam, on or about 031201, was disrespectful in toward Aviation Boatswain’s Mate (Aircraft Handling) Second Class R_ G_ petty officer, then known by the said Airman Apprentice S_ R. H_, U.S. Navy, to be a petty officer, who was then in the execution of his office, by saying to him “you freak’n p----” or words to that effect.
	Specification 3: In that Airman Apprentice S_ R. H_, U.S. Navy, USS KITTY HAWK, on active duty, did on board USS KITTY HAWK, at Guam, on or about 031201, was disrespectful in toward Master-al-Arms Second Class E_ P. B_, a Master-at-Arms Second Class petty officer, then known by the said Airman Apprentice S_ R. H_, U.S. Navy, to be a petty officer, who was then in the execution of his office by spitting at his leg.
	Charge III: Violation of the UCMJ, Article 95: Resisting apprehension.
	Specification 1: In that Airman Apprentice S_ R. H_ U.S. Navy, USS KITTY HAWK on active duty, did on board USS KITTY HAWK at Guam on or about 031201, resist being apprehended by Master at Arms First Class J_ D. A_ an armed force police, a person authorized to apprehend the accused.
	Specification 2: In that Airman Apprentice S_ R. H_, U.S. Navy USS KITTY HAWK, on active duty did on board USS KITTY HAWK, at Guam, on or about 031201 resist being apprehended by Master at Arms Second Class E_ P, B_ an aimed force police, a person authorized to apprehend the accused.
	Charge IV: Violation of the UCMJ, Article 117: Provoking speeches or gestures.
	Specification: In that Airman Apprentice S_ R. H_, U.S. Navy USS KITTY HAWK, on active duty, did on board USS KITTY HAWK at Guam, on or about 031130, wrongfully use provoking words, to wit: “I will kick your a--“ or words to that effect towards Aviation Boatswains Mate (Aircraft Handling) Second Class R_ G_.
	Charge V: Violation of the UCMJ, Article 134: Disorderly conduct, Drunkenness.
	Specification 1: In that Airman Apprentice S_ R. H_, U.S. Navy, USS KITTY HAWK, on active duty, was, on board USS KITTY HAWK located at Guam, on or about 031126, drunk and disorderly which conduct was prejudicial to good order and discipline.
	Specification 2: In that Airman Apprentice S_ R. H_, U.S. Navy, USS KITTY HAWK, on active duty, was, on board USS KITTY HAWK located at Guam, on or about 031120, drunk and disorderly which conduct was prejudicial to good order and discipline.

031203:	Applicant diagnosed as ASAM Level 2.0 alcohol dependent.  As a result of diagnosis Applicant was scheduled to attend ASAM Level 2.0 Outpatient Treatment for alcohol dependence at Naval Hospital Yokosuka from 040202 to 040224.  [Extracted from NAVPERS 1070/613, Administrative Remarks.

031203:	Charges referred to summary court-martial.

031206:	Summary Court-Martial.
	Charge I: Violation of UCMJ, Art 89-Disrespect toward a. superior commissioned officer (4 specifications).  Pleas:  Not Guilty.  Findings:  Guilty.
	Charge II: Violation of UCMJ, Art 91-Insubordiante conduct toward a petty officer (3 specifications). Pleas:  Not Guilty.  Findings:  Guilty.
	Charge III: Violation of UCMJ, Art 95-Resisting apprehension (2 specifications).  Pleas:  Not Guilty.  Findings:  Guilty.
	Charge IV: Violation of UCMJ, 117-Provoking speech/gesture.  Plea:  Not Guilty.  Findings:  Guilty.
	Charge V: Violation of UCMJ, Art 134-Disorderly conduct, drunkenness (2 specifications).  Pleas:  Not Guilty.  Findings:  Guilty.
	Sentence: Forfeiture $767.00 pay per month for one month, confinement for 30 days, and reduction to E-1.
	CA action 031209:  Sentence approved and ordered executed.

031206:	Applicant found fit for confinement.  Applicant also found to be fit for bread and water for 72 hours.

031209:	Applicant found to be physically qualified for separation.

040129:	Applicant counseled extensively on the consequences of refusal for treatment.  Applicant believes administrative separation to be the best choice, and fully understands all the consequences of his decision to not seek treatment for his alcohol dependency.  Applicant refused to complete his SF 600 medical screening prior to treatment for his alcohol dependence and has subsequently refused to attend outpatient treatment.  [Extracted from NAVPERS 1070/613, Administrative Remarks.]

040130:	Applicant interviewed by LT T_ N. S_, Ph.D., USS KITTY HAWK Licensed Independent Practitioner, and was determined to be non-amenable to treatment.  [Extracted from NAVPERS 1070/613, Administrative Remarks.]

040204:	Applicant refused to complete his SF600 Medical Screening prior to treatment for his Alcohol Dependence, and has subsequently refused to attend ASAM Level 2.0 Outpatient Treatment.
Applicant is to be considered a treatment failure as a result of his non-amenability to treatment, and according to OPNAVINST 5350.4C will be processed for administrative separation.  [Extracted from NAVPERS 1070/613, Administrative Remarks.]

040205:	Applicant notified of intended recommendation for discharge by reason of misconduct - pattern of misconduct, misconduct - commission of a serious offense, and alcohol rehabilitation failure.

040205:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040210:	Commanding Officer, USS KITTY HAWK (CV 63), recommended discharge under other than honorable conditions by reason of misconduct - pattern of misconduct; misconduct - commission of a serious offense and alcohol rehabilitation failure.  Commanding Officer’s comments:  “As addressed in Subparagraph (d) above, AR H_(Applicant) meets the requirements for administrative processing for pattern of misconduct, commission of a serious offense and alcohol rehabilitation failure.  He has proven that he is incapable of conforming to the most simple and basic military duties.  His refusal of alcohol treatment is unacceptable to navy policy.  His most recent criminal conduct proves he does not have the potential for future honorable service and is a substantial risk while on liberty.  Therefore, I recommend that he be discharged under Other than Honorable conditions.”

040211:	Commander, Carrier Group FIVE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

	Service Record was missing elements of information (1 set of Performance and Behavior marks).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040225 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 had problems in the Navy because his family and military life “were not in harmony”.  Further, the Applicant states that he had problems with alcohol and that he did not attend alcohol rehabilitation.  While he may feel that these factors were the underlying cause of his misconduct the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 a retention warning and a nonjudicial punishment proceeding for violations of Articles 117 (Provoking speech, gestures), 134 (Threat, communicating), and 134 (Drunk and disorderly) of the UCMJ.  In addition, the Applicant was found guilty by summary court martial of violating UCMJ Articles 89 (Disrespect toward superior commissioned officer, 4 specs), 91 (Insubordinate conduct toward petty officer, 3 specs), 95 (Resisting apprehension, 2 specs), 117 (Provoking speech, gestures), and 134 (Drunk and disorderly, 2 specs).  Violations of UCMJ Articles 89, 91, 95, and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court martial.  Further, the Applicant was diagnosed as alcohol dependent but refused Level II Outpatient Treatment, therefore, he was considered to be an alcohol treatment failure.  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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.  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.  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 89 (Disrespect toward superior commissioned officer), 91 (Insubordinate conduct toward a petty officer), 95 (Resisting apprehension), and 134 (Threat, communicating).

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