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

FOR OFFICIAL USE ONLY

ex-OS3, USN
Docket No. ND06-00745

Applicant’s Request

The application for discharge review was received on 20060511.  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 20070315.  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 18, Remarks, should contain the following statement:  “CONTINUOUS HONORABLE ACTIVE DUTY FROM 870202 UNTIL 961209,” and Block 28, Narrative Reason, should read:  “ PATTERN OF MISCONDUCT.” The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - ISSUES AND DOCUMENTATION

Applicant Issues:

The Applicant is requesting an upgrade based on quality of service.  The Applicant believes the discharge was inequitable because it was based on one isolated incident.

The Applicant is requesting an upgrade of his discharge characterization to general in order to receive medical benefits at the V.A hospital

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19810928 - 19820202	COG
	Active:   USN	19820203 - 19870201	HON
		USN	19870202 - 19910102	HON
		USN	19910103 - 19961209	HON

Period of Service Under Review:

Date of Enlistment:  19961210		Date of Discharge:  20010817

Length of Service (years, months, days):

	Active:    04  08  08
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  34

Years Contracted:  5 (3-month extension)

Education Level:  12				AFQT:  26

Highest Rate:  OS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.2 (6)		Behavior:  3.2 (6)		OTA:  4.19

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Fourth Good Conduct Award for period ending 99Jul11; Sea Service Deployment Ribbon(6); Armed Forces Expeditionary Medal; Navy “E” Meritorious Unit Commendation(2); Navy Unit Commendation(2); National Defense Service Medal; Southwest Asia Service Medal(3); Kuwait Liberation Medal; NATO Medal; Navy/Marine Corps Achievement Medal(2); Kuwait Liberation Medal(Kuwait); Armed Forces Service Medal(2); Navy/Marine Corps Commendation Medal; Enlisted Surface Warfare Specialist; Master Training Specialist.

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: 

000131:	Competence for duty evaluation by F_ L. G_, Jr., LCDR, MC, USNR:  Applicant found not competent to perform duty due to alcohol use, BAC of 0.135.  Applicant admitted to sick call.

000216:	NJP for violation of UCMJ, Article 112:  Drunk on duty.
	Award:  Verbal reprimand, forfeiture of $200.00 per month for 2 months, reduction to E-5.  Forfeiture and reduction suspended for 6 months.  No indication of appeal in the record.

001018:	Retention Warning:  Advised of deficiency (Counseled by CAAC concerning his requirement in participating in weekly After Care Group Therapy.  At this time Petty Officer W_(Applicant) is not in compliance.  Petty Officer W_ is directed to participate in After Care Group Therapy every Monday at 1330 at CAAC Naval Station, Mayport, until he is discharged from the program.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001023:	Competence for duty evaluation by J. C_, LT, MC, USNR.  Applicant found not fit for duty due to alcohol use.  Notify command DAPA.  Applicant released to custody of command and escorted by command.

001025:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
	Violation of UCMJ, Article 112: Drunk on duty.
	Award:  Verbal reprimand, forfeiture of $100.00 per month for 1 month, reduction to E-5.  Forfeiture and reduction suspended for 6 months.

001102:	NJP for violation of UCMJ, Article 92.
Violation of UCMJ, Article 112.
	Award:  Forfeiture of $100.00 per month for 1 months, reduction to E-5.  Forfeiture of $50.00 and reduction suspended for 6 months.  No indication of appeal in the record.

001102:	Retention Warning:  Advised of deficiency (Financial indebtedness with the Navy Exchange Service Command (NEXCOM) and the DOD VISA Travel Card Program.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001206:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct-pattern of misconduct and alcohol abuse rehabilitation failure.

001207:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

010123:	Forfeiture of pay and reduction to E-5 awarded at NJP on 001102 vacated.

010125:	Officer in Charge, Naval Branch Medical Clinic, Mayport discharged Applicant from the Continuing Care Program due to non-compliance with formal Continuing Care Treatment Plan.

010201:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that evidence presented did not support a pattern of misconduct by reason of alcohol abuse rehabilitation failure, however found that the Applicant had committed misconduct due to a pattern of misconduct, that such misconduct warranted separation, and recommended discharge with under other than honorable conditions and recommend separation be suspended until 011210.

010213:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful order or regulation.
Violation of UCMJ, Article 112: Drunk on duty.
Violation of UCMJ, Article 134: Debt, dishonorably failing to pay.
	Award:  Oral admonition.  No indication of appeal in the record.

010223:	Commanding Officer recommended discharge with a honorable by reason of pattern of misconduct and non-compliance with formal continuing care treatment plan.  Commanding Officer’s comments:  “I support the Administrative Board’s decision of “Suspended Separation until 011210” and I recommend, subject completion of ARC, that characterization of his discharge should be “Honorable.”  Further, again pending successful completion of ARC and an abstinence from alcohol thereafter, I will favorably endorse his three-month extension request to complete twenty years service.

010314:	Director, Personnel Progression, Performance and Security.  Suspended discharge - Action Memorandum
	Purpose:  To approve a misconduct discharge suspended for 12 months.

010326:	CNP directed the Applicant's discharge under other than honorable conditions by reason of pattern of misconduct.  The execution of this discharge is suspended pending further observation of member’s performance and conduct.  If at any time during the suspension period, or upon expiration of the member’s active obligated service, whichever is sooner, the member violates any of the terms presented, the commanding officer with SPCM convening authority is authorized to vacate the suspension and execute the discharge.

010730:	NJP for violation of UCMJ, Article 112a:  Wrongful use, possession of controlled substances.
	Award:  Reduction to E-4.  No indication of appeal in the record.

010817:	DD Form 214:  Applicant discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority:  NAVMILPERSMAN 1910-140.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010817 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 is requesting an upgrade based on quality of service.  The Applicant believes the discharge was inequitable because it was based on one isolated incident. 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 5 nonjudicial punishment proceedings for violations of Articles 92 (Failure to obey lawful order), 112 (Drunk on duty), 112a (Wrongful us, possession of controlled substances) and 134 (Debt, dishonorably failing to pay) of the UCMJ.  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 is requesting an upgrade of his discharge characterization to general in order to receive medical benefits at the V.A. hospital.  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 enhancing employment or 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, 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, Articles 92 (Failure to obey lawful order), 112 (Drunk on duty), 112a (Wrongful us, possession of controlled substances) and 134 (Debt, dishonorably failing to pay).  

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