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

FOR OFFICIAL USE ONLY

ex-AA, USNR
Docket No. ND06-00590

Applicant’s Request

The application for discharge review was received on 20060330.  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 20070110.  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:

“My discharge was improper because during this period I was not allowed to make statements on the incidents or get medical help.  I went from a proud Sailor in the US Navy to something that I had never experienced, in all my endeavors there were no failure, I excelled in sports school, and enlisted in the US Navy to carry family traditions to serve and protect my country with honor and distinction. I did not intend to fall into a deep depression with no place to turn to.  I believe in the Americans Armed Forces.
With Supervisiors and Staff help, I would become an exemplary Sailor the US Navy.  I developed problems after entering the military.  I felt trap and scared to seek professional help, alienated with nowhere to turn.  The only counseling, received was in the form of threats and administrative action, I had no idea what I signed, I didn’t want to anger or upset my Supervisors any further by asking question.  There was never a counselor willing to talk to me as an individual with a problem, and Supervisors were not train.  My mental condition, and incidents that were not entirely my fault were use.  There was no one to talk in good faith or to ask for advice.  Supervisors were not willing to help with personal problems and I needed help.  Instead, they were quick to react and their resolve to Sailor’s problems to send them to Captain’s and get rid of them.  I was order to report to the XO and Captain.  He stated, “You are out the Navy And you will get a bad discharge.”  I was petrified.  From the begining I had no options, assistance or advice.  Higher authority should intervene for the protection and welfare of personnel.  I felt violated.  Due to circumstances, improper justice was administered.  My career terminated by one person, Who I don’t recall informing me of my rights in accordance with Uniform Code of Military Justice.  Shamed, humiliated and regrtftul of my actions, now I had to face my guardian,my Uncle.  His grandfather, Uncles and brothers...served with honor to protect our country during the Eourpean Campaign of D-Dayand VietNam.
In conclusion Sir, consider my family histroy of faithful and loyal service in the US Army, Marine Corp., and Air Force.  Help me get my life together, please assist me with the burden of a bad discharge.  Please upgrade my discharge to Honorable Conditions.  I am asking for Clemency from my Superior Officers and Members of the Boards.  Please do not punish me further.  Please upgrade my discharge.  Please grant me a little dignity and justice.  I regret and accept responsibility for my actions and I am asking for your compassion.  Thank you Members of the Board for your kindness and undestanding.”

Documentation

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

Statement from R_ L. G_ (Applicant), dtd January 22, 2006
Four pages from Applicant’s service record
Character Reference ltr from E_ R_, MSgt, Air Force, Retired, dtd March 21, 2005
Character Reference ltr from F_ A_ M_, Director, Strategic Global Alliances, Sun 	Microsystems, INC., dtd April 16, 2005
Character Reference ltr from F_ B. M_, State of Texas Parole Officer, Retired, dtd April 	16, 2005
Character Reference ltr from R_ A. R_, MSgt, United States Marine Corps, Retired, dtd April 11, 	2005
Character Reference ltr from J_ M_, Retired Insurance Underwriter, dtd March 21, 2005
Applicant’s DD Form 214 (Service - 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19911031		Date of Discharge:  19940107

Length of Service (years, months, days):

	Active:    01  04  06
	Inactive:  00  10  01

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  23

Years Contracted:  8

Education Level:  12				AFQT:  42

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.8 (2)		Behavior:  1.0 (2)		OTA:  1.00

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/Southwest Asia Service Medal w/Bronze Star.

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

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

Chronological Listing of Significant Service Events: 

911031:	Pre-service waiver for one non minor misdemeanor and two alcohol related offenses granted.

920902:	Commenced active duty for a period of 24 months.

930203:	Command DAPA report of alcohol incident involving Applicant.  
	Date of incident: 930127
	Substance abused: Alcohol
	Method of Identification: MAA Desk Journal
	Comments:  Assault, BAC .336

930218:	NJP for violation of UCMJ, Article 134: Drunk and disorderly which conduct was to the prejudice of good order and discipline in the Armed Forces.
	Award:  Forfeiture of $250.00 per month for 2 months, restriction and extra duty for 25 days.  Forfeiture for 1 month suspended for 6 months.  No indication of appeal in the record.

930221:	Retention Warning:  Advised of deficiency (On 930127 drunk and disorderly, which conduct was to the prejudice of good order and discipline in the armed forces.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930507:	Applicant evaluated by Director, Counseling and Assistance Center and appears to be an alcohol abuser.  Recommend Applicant be put in Level II outpatient treatment.

930516:	Command DAPA recommends Level II treatment.

930528:	Retention Warning:  Advised of deficiency (Alcohol abuse - an ongoing, excessive involvement with alcohol and/or an alcohol related incident.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

930528:	Applicant offered and accepted Level II Alcohol Rehabilitation Treatment Program.

930612:	Command DAPA report of alcohol incident involving Applicant.  
	Date of incident: 930612
	Substance abused: Alcohol
	Method of Identification: MAA Desk Journal
	Comments:  Drunk and disorderly, fighting on liberty bus, BAC .140

930625:	NJP for violation of UCMJ, Article 134: Drunk and disorderly by fighting on 930610.
	Award:  Forfeiture of $250.00 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

930709:	Drug and Alcohol Evaluation by Counseling and Assistance Center.
	Applicant reported to CAAC at 0905 on 930709 as a result of a second alcohol related incident (i.e. 930607, drunk and disorderly BAC. 0.140).  Applicant appears to be an alcohol abuser.
	Recommendation: Medical officer evaluation to confirm non-dependency and considered for administrative separation based on four alcohol incidents.  If retained recommend Level II treatment.
	Note written on second page of letter:
	“Due to past events dealing with AA G_(Applicant)’s alcohol use - Level III treatment via VA would be the proper level recommended.  We agree with the medical department on stepping up the level of treatment.  Separating this patient is a option.  I strongly recommend before the Navy gets involved with paying for his mistakes.”

930723:	Medical Officer, USS NIMITZ (CVN 68) by T_ M. H_, LT, MC, USNR: Applicant does not have a drug problem.  Applicant is an alcohol abuser without dependence.  Recommend Applicant be discharged from the naval service.  Remarks:  If discharged, recommend Level II thru VA program.  If retained, recommend Level II therapy.

930908:	Command DAPA report of alcohol incident involving Applicant.  
	Date of incident: 930904
	Substance abused: Alcohol
	Method of Identification: MAA Desk Journal
	Comments:  BAC .122, DUI, involved in single care accident

930922:	Medical Officer found Applicant to be psychologically dependent.  Recommends Level III treatment. Comments: “This is the third dependency screening this Member’s had.  Further incidents likely.  Suggest separation.”

931005:	Command DAPA recommends administrative separation with treatment via the VA.  Comments:  “CAAC Screen:  93 Jul 09, 93 May 07 Assessment: Alcohol Abuse.  Recommendation: Level II.  After AR G _ (Applicant’s) third incident, he was rescreened by medical and found psychologically dependant on alcohol.  In light of his continued incidents on 93 Sep 22 AR G_ (Applicant’s) CAAC recommendation was changed to administrative separation with Level III treatment via the VA.”

931023:	NJP for violation of UCMJ, Article 111: Drunk driving on 930904.
Violation of UCMJ, Article 134: Wrongful use of a military official FA badge on 931014.
	Award:  Forfeiture of $407.00 per month for 2 months, restriction and extra duty for 45 days.  Restriction and extra duty for 15 days suspended for 6 months.  No indication of appeal in the record.

931204:	Medical with T_ M. H_, LT, MC, USNR.  Applicant being administrative separated from Navy.  Level III treatment for ETOH dependence has not yet occurred.  Pt should be offered Level III (three) treatment for ETOH dependence via VA Program.

931210:	NJP for violation of UCMJ, Article 86: UA fm appointed place of duty, to wit: 0700 morning muster on 931210.
	Violation of UCMJ, Article 91: Willful disobedience and disrespect towards a chief petty officer on 931203.
	Award:  Forfeiture of $250.00 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

931211:	Dependency evaluation by T_ M. H_, LT, MC, USNR.
	Applicant is an alcohol abuser with dependence.
	Recommendation:  Applicant be discharged from the Naval Service.  Applicant receive CAAC Level III treatment through the VA program after separation from Navy.

931211:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offenses as evidenced by violating UCMJ, Article 91 willfully disobedience and disrespect toward a chief petty officer and by violating UCMJ, Article 111 driving drunk.

931211:	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.

931220:	Applicant found medically qualified for separation.
931220:	Commanding Officer, USS NIMITZ, recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of serious offenses as evidenced by violating UCMJ, Article 91 willful disobedience and disrespect toward a chief petty officer and by violating UCMJ, Article 111 driving drunk.  Commanding Officer’s comments:  “SNM was awarded NJP on 930219 for being drunk and disorderly. SNM was awarded NJP on 930626 for being drunk and disorderly by fighting.  SNM was awarded NJP on 931023 for driving while drunk and for wrongfully using a military official badge.  SNM was again awarded NJP on 931210 for being UA fm appointed place of duty, willful disobedience and disrespect towards a chief petty officer. SNM’s serious misconduct cannot be tolerated and is detrimental to good order and discipline of this command and the Navy.  SNM possesses no potential for further naval service.  I strongly recommend that SNM be separated fm the naval service with characterization of service as other than honorable.”

931228:	BUPERS, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940107 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 states that his discharge was improper because he “was not allowed to make statements on the incidents or get medical help”.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The record shows that the Applicant was the subject of 4 nonjudicial punishment proceedings and that he did not utilize his right to appeal (submit a statement) on any of these occasions.  In addition, the Applicant was screened by competent medical authorities and substance abuse counselors on 3 occasions over a 7 month period.  Within that 7 month period, the Applicant was recommended for Level II rehabilitation and he committed several violations of the UCMJ, which lead his Command to initiate administrative separation proceedings. When notified of the Commanding Officer’s intent to recommend his administrative separation, the Applicant waived his right to consult counsel and his right to submit a statement.  The Applicant’s misconduct is clearly documented.  The record shows that the Applicant had numerous opportunities to submit statements and that he did receive medical attention.  Therefore, relief on this basis is not warranted. 

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 2 retention warnings and 4 nonjudicial punishment proceedings for violations of Articles 86 (Unauthorized absence), 91 (Willfully disobeying a petty officer), 111 (Drunken driving) and 134 (Drunk and disorderly and wrongful use of an official military badge) of the UCMJ.  Violations of UCMJ Articles 91 and 111 are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court martial. 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, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 91 (Willfully disobeying a petty officer) and 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