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

FOR OFFICIAL USE ONLY

ex-ABFAR, USN
Docket No. ND06-00731

Applicant’s Request

The application for discharge review was received on 20060419.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20070223.  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 - ISSUES AND DOCUMENTATION

Decisional Issues

EQUITY – Other than honorable discharge not warranted.

Documentation

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

Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19980324 - 19980701	COG
	Active:   USN	19980702 - 20010930	HON

Period of Service Under Review:

Date of Enlistment:  20011001		Date of Discharge:  20050128

Length of Service (years, months, days):

	Active:    03  03  28
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  6

Education Level:  12				AFQT:  35

Highest Rate:  ABF3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)			Behavior:  1.0 (1)		OTA:  1.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy Achievement Medal, Navy Unit Commendation, Navy “E” Ribbon(3), First Good Conduct Award for period ending 01Jul01, National Defense Service Medal, Armed Forces Expeditionary Medal(2), Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Humanitarian Service Medal, Sea Service Deployment Ribbon(4), Overseas Service Ribbon(2)

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: 

011001:	Reenlisted this date for a term of 6 years.

021119:	NJP for violation of UCMJ, Article 86: Absence from unit.
	Award:  Forfeiture of $734.00 per month for 1 month, restriction and extra duty for 15 days, reduction to E-3.  Reduction and forfeiture suspended.  No indication of appeal in the record.

021210:	Reduction to E-3 and forfeiture of $734.00 awarded and suspended on 021119 vacated due to continued misconduct.

021217:	Substance Abuse Rehabilitation Department
	Diagnoses:
	AXIS I: Alcohol dependence.
	Nicotine dependence.
	AXIS II: None.
	AXIS III: None.
	AXIS IV: Occupational stressors.
	AXIS V: GAF = 70 (current)
	Recommend substance abuse treatment is indicated.  Level of treatment recommended is Intensive Outpatient.

030722:	Substance Abuse Rehabilitation Program, Naval Medical Center, San Diego.
	Treatment dates:  030623 to 030718
	The patient was referred to the Substance Abuse Rehabilitation Program, Naval Medical Center for treatment due to multiple unauthorized absences due to his alcohol usage.  The patient has a history of previous treatment; he attended IMPACT in 1999, following an incident of underage drinking.  The patient completed four weeks of Intensive Outpatient Treatment.  The patient was diagnosed with Alcohol Dependence and desires to continue drinking.  The patient should participate in a command-monitored program fro a period of twelve months.  Applicant should:  1. Meet with the Command DAPA on a weekly basis.  2.  Attend one AA meeting per week.  3.  Build a larger sober support network.  4.  Attend Aftercare Groups at SARP NAVSTA on Wednesday from 0800-0930.

031001:	NJP for violation of UCMJ, Article 134: Disorderly conduct, drunkenness.
	Award:  Forfeiture of $814.00 per month for 2 months, restriction for 60 days, recommendation to E-4 withdrawn.  No indication of appeal in the record.

040212:	NJP for violation of UCMJ, Article 86: UA from unit 2359, 040206 until 1010, 040207.
Violation of UCMJ, Article 92: Failure to obey a lawful order by failing to have a liberty buddy and by failing to sign the liberty log.
Violation of UCMJ, Article 107: Made a false official statement.
	Award:  Forfeiture of $665.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

040611:	Substance Abuse Rehabilitation Program, Naval Medical Center, San Diego.
	Treatment dates:  040517 to 040611
	The patient was referred after being apprehended for drunk and disorderly conduct.  The patient minimally completed four weeks Residential Treatment.

040923:	NJP for violation of UCMJ, Article 111: Driving under the influence.
Violation of UCMJ, Article 128: Assault.
Violation of UCMJ, Article 134: Drunk and disorderly.
	Award:  Forfeiture of $595.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

050201:	COMPHIBGRU THREE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050128 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 Board presumed regularity in the conduct of governmental affairs (E).

The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity.  Specifically, the Board presumed that the Applicant received and violated a retention warning and that the Applicant was properly notified of his Commanding Officer’s intention to process the Applicant for separation and that the Applicant was afforded all rights which he elected at notification.

The Applicant contends that an under other than honorable conditions discharge was 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 four nonjudicial punishment proceedings for violations of Articles 86, 92, 107, 111, 128 and 134 of the UCMJ.  The Applicant’s violations of Articles 92, 107, 111 and 128 are serious offenses for which a punitive discharge is authorized is adjudged as part of the sentence upon conviction by a special or general court-martial. 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.   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 following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of 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.  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, Article 107, false official statement, Article 111, drunken driving or Article 128, assault.  

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.