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

FOR OFFICIAL USE ONLY

ex-GSMFN, USN
Docket No. ND06-00613

Applicant’s Request

The application for discharge review was received on 20060406.  The Applicant requests that 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 20070125.  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 a pattern of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issue

Equity – Post service

Equity – Quality of service

Documentation

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

Applicant’s DD Form 214 (Service 2 (4) and Service 7 (2))
One hundred and thirty-eight pages from Applicant’s service and medical records
Applicant’s statement, dated March 13, 2006 (2 pages) (not signed)
Character Reference ltr from A_ F_, Nurse Manager, dated February 20, 2006
Character Reference ltr from M_ M_, RN, Oncology Unit, dated March 7, 2006
Character Reference ltr from E_ R_, Assistant Manager, Staples Copy and Print Center, 	dated February 27, 2006
Character Reference ltr from F_ S_, Copy Center Supervisor, Staples Copy and Print 	Center, dated March 18, 2006
Applicant’s transcript from Nassau Community College
Applicant’s Student Information System on-line registration process, dated March 7, 	2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000310 - 20000327	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000328		Date of Discharge:  20040304

Length of Service (years, months, days):

	Active:    03  11  07
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  12				AFQT:  69

Highest Rate:  GSM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (5)		Behavior:  2.4 (5)		OTA:  3.02

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal; Meritorious Unit Commendation; Armed Forces Expeditionary Medal; Good Conduct Medal; Sea Service Deployment Ribbon(3); Overseas Service Ribbon(3).

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

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

Chronological Listing of Significant Service Events: 	

021128:	USS CUSHING (DD 985) Medical Evaluation.  
	Reason for referral:  Public drunkenness, alcohol intoxication.
	Applicant found comatose after binge episode of alcohol during liberty port. Applicant found not fit for duty for 24 hours.

030202:	USNH Yokosuka, Substance Abuse Rehabilitation Programs (SARP),
Alcohol and Drug Screening Report, completed by J_T.H_, LT, MSC, USNR.  Applicant undergoes alcohol screening due to unfit for duty determination, public intoxication in liberty port.  
Assessment: Applicant does meet criteria for substance dependence.
Applicant does appear to meet DSM IV criteria for ETOH Dependence.
Plan: DAPA/SACO monitoring for 12 months.  Attend PREVENT.
ASAM Level 2, Intensive Outpatient Treatment for Alcohol Abuse.
DAPA/SACO to call and schedule an appointment for treatment.
Medical screen for substance dependence needed.
Physical exam required within 30 days of attending treatment.  
12 Step AA meetings 5 per week until treatment.

030314:	Medical Record.  Comments by J_T.H_, LT, MSC, USNR.  Patient (Applicant) referred to staffing after failing to complete his homework assignment.  He also was 7 minutes late for group therapy.  Previously, the patient was counseled for failing to complete his autobiography.  
MSE: Within normal limits.
Axis I: 303.90 Alcohol Dependence
Axis II: N71.09 Alcohol Dependence
Axis III: None.
Axis IV: Military Duty
Axis V: GAF = 65
Patient retained on probation.  Further infractions will result in expulsion from treatment.

030326:	NJP for violation of UCMJ, Article 86:
	Specification: On or about 030318, absent himself from his unit, to wit: Alcohol Treatment Facility and did remain so absent for approximately 25 minutes.
	Award:  Forfeiture of ½ month’s pay for 1 month (susp 6 months), restriction and extra duty for 15 days (susp for 6 months), reduction to E-3.  No indication of appeal in the record.

030326:	Retention Warning:  Advised of deficiency (Misconduct resulting in NJP.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030812:	Retention Warning:  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 040223.]

040209:	NJP for violation of UCMJ, Article 81: Conspiracy.
	Specification: On or about 040117, conspired to commit an offense under the Uniform Code of Military Justice, to wit: false official statement relating to an assault, and in order to effect the object of the conspiracy, initially lied about his knowledge of the assault.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
Specification: On active duty, on or about 040117, violate a regulation, to wit: Navy Regulations Chapter 11 Section 4 Article 1137 (Obligation to report offenses).
	Award:  Forfeiture of ½ month’s pay for 1 month, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

040221:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct - pattern of misconduct.

040221:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040223:	Commanding Officer directed discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

040224:	Applicant found fit for separation. 

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040304 by reason of misconduct due to a pattern of misconduct (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).  

Equity – Quality of service:  The Applicant states that he received many awards while he was in the Navy.

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.  A general 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 2 nonjudicial punishment proceedings for violations of Articles 86, 81, and 92 of the UCMJ.  Violation of UCMJ Article 92 (failure to obey order, regulation) is considered a serious offense 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.

Equity – Post service:  The Applicant states that since he has been out of the Navy that he has not had any problems with alcohol and that he has been working fulltime.

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.

For the Applicant’s edification,  the Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

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, regulation).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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