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

FOR OFFICIAL USE ONLY

ex-AD3, USN
Docket No. ND06-00735

Applicant’s Request

The application for discharge review was received on 20060509.  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 20070301.  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 commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Propriety:  Basis for discharge did not exist
Equity:	      Characterization not warranted by overall service record

Documentation

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

Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19840215 – 19841215	ELS
	Inactive: USNR (ActMarPrg)	19860211 - 19860421	
	Active:   USNR	19860422 - 19891228	HON

Period of Service Under Review:

Date of Enlistment:  19891229		Date of Discharge:  19950815

Length of Service (years, months, days):

	Active:    05  07  17  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  24

Years Contracted:  4 (22-month extension)

Education Level:  12				AFQT:  50

Highest Rate:  AD3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (8) 		Behavior:  3.7 (8) 			OTA:  3.80 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Meritorious Unit Commendation, Battle ”E” Ribbon, Good Conduct Award (2 Awards), National Defense Service Medal, Southwest Asia Service Medal with Bronze Star, Sea Service Deployment Ribbon (3 Awards)

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

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

Chronological Listing of Significant Service Events: 

891229:	Reenlisted this date for a term of 4 years.

920701:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 134: Drunkenness-incapacitation for performance of duties.
	Award:  Reduction in rate (suspended for 3 months).  No indication of appeal in the record.

920701:	Retention Warning:  Advised of deficiency (alcohol abuse).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, issued disciplinary and discharge warning.

920811:	Retention Warning:  Advised of deficiency (failure to pay just debts, unauthorized absence, drunk on duty).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, issued disciplinary and discharge warning.

9210xx:	Applicant undergoes Level II alcohol rehabilitation treatment.
	[Extracted from Medical entry dated 950608 and Commanding Officer ltr dated 950710.]

941005:	Retention Warning:  Advised of deficiency (failure to pay just debts).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, issued disciplinary and discharge warning.

950502:	Applicant arrested by Mount Vernon Police Department, Mount Vernon, Washington for violation of Statue Code MVMC (MT. Vernon) 9.17: Reckless endangerment D.U.P.A./Recklessly engaged in conduct which created a substantial risk for death or serious physical injury to another.  

950503:	Applicant arraigned in Mount Vernon Municipal Court.  Released on promise to appear, referred to public defender and private attorney.  Case continued until 950516 for further arraignment and trial setting.  Applicant ordered to have no intentional contact with M_ M_ (Applicant’s spouse), stay away from (address omitted) (Applicant’s abode) except when and only if accompanied by a peace officer, and consume no alcohol or controlled substance.  Applicant certifies understanding of, and agreement to abide by, the order.

950505:	M_ M_ (Applicant’s spouse) submitted motion to cancel the no-contact order against Applicant.  Prosecuting Attorney consented to motion.

950508:	Court modifies no-contact order to allow contact if defendant (Applicant) not consuming or under influence of alcohol/non-prescription drugs.

950515:	Applicant requests continuance of court date to 950829 in order to complete alcohol counseling.

950516:	Applicant’s request for continuance granted.

950608:	Medical evaluation at Medical Department, USS CARL VINSON (CVN – 70), LT P_ J. M_, MC, USNR, CVW-14 Flight Surgeon:  
29 y.o. AD wm history of alcohol abuse s/p level II alcohol rehab 10/92 and recent domestic disturbance…remote problems assoc. w/alcohol use including DUI  and work difficulties…recent personal difficulties including financial…and…marital problems.  One month ago, he was involved in an argument w/his wife in their home, he kicked and broke a glass table.  SNM states he consume three beers prior to argument and there has been no phys. Abuse.  His wife called local police and SNM was arrested.  BAC not determined and …states …not drunk at the time.  Pt states…occ. alcohol intake…but …none since the incident.
A.  1. s/p level II alcohol rehab 10/92
2.  alcohol abuse w/recent domestic violence involving alcohol
3.  no signs/symptoms of alcohol dependency
P.  1.  recommend repeat level II alcohol rehab
2.  do not drink alcohol
3.  seek assistance from family services in regards to family and financial problems. 

950630:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to commission of a serious offense as evidenced by civil arrest for recklessly engaged in conduct which created a substantial risk of death or serious physical injury to another.

950705:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.  Applicant acknowledged that he did not object to this separation.

950710:	Commanding Officer, Tactical Electronic Warfare Squadron 139, recommended discharge under other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct due to commission of a serious offense as evidenced by civil arrest for recklessly engaging in conduct which created a substantial risk of death or serious physical injury to another.  Commanding Officer’s comments:  AD3 M_ (Applicant) has been on board for almost two years and to date has been counseled concerning failure to pay just debts on more than two occasions, being drunk on duty and unauthorized absence.  He went through Level II treatment as a result of the drunk on duty and UA charges.  Since then he has had numerous financial problems and another alcohol related incident.  AD3 M_ has become a burden to the command and the Navy.  He lacks the motivation and the determination to meet the standards of today’s Navy.  I recommend that he be discharged under Other Than Honorable conditions.

950803:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950815 by reason of misconduct due to commission of a serious offense (A) 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 (B and C).  The Board presumed regularity in the conduct of government affairs (D).

Applicable regulations required that a Sailor must be processed for administrative separation when the commanding officer believed by a preponderance of the evidence that the individual committed extremely serious misconduct that either resulted in, or had the potential to result in death, or serious bodily injury.  The Board found credible evidence in the record that supported this conclusion.  The Applicant, contrary to his claim that his discharge was based on an “isolated incident,” had a history of alcohol abuse that manifested itself in his professional and personal life.  The specific basis for discharge was for a documented act of alcohol related violent behavior which endangered another person.  Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence.  The Board found credible evidence in the record to support the conclusion that the act occurred.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action.  The Applicant was provided the opportunity to present his case before an administrative board, but waived that right, thus accepting the discharge recommended in the letter of notification.  Relief 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 3 retention warnings, a nonjudicial punishment proceeding for violations of Articles 86 and 134 of the UCMJ, a substantiated incident of alcohol rehabilitation treatment failure, and an undisputed domestic violence incident resulting in civil arrest.  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 NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces; therefore, NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Reenlistment policy of the Naval service or Marine Corps is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for reenlistment through a recruiter.  

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, 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.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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.

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