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

FOR OFFICIAL USE ONLY

ex-AA, USN
Docket No. ND06-00806

Applicant’s Request

The application for discharge review was received on 20060526.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated American Legion as the representative on the DD Form 293.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20070221.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, inequity in the narrative reason for discharge of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the characterization of discharge shall not change and 3 to 2 that the narrative reason for discharge shall change to:  SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated on American Legion Statement

1.  (Equity Issue) We opine that alcohol abuse impaired this former member’s ability to serve and was a contributing factor in his misconduct.

2.  (Equity Issue)  We further request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.   

Documentation

Only the service record was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

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:  19970701		Date of Discharge:  20000723

Length of Service (years, months, days):

	Active:    03  00  23  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  23 days
	Confinement:		    3 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  8 (3 year active duty period)

Education Level:  12				AFQT:  unreadable

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, Meritorious Unit Commendation (2nd).

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

970701:	Commenced active duty for a period of 36 months.

980426:	Applicant to unauthorized absence at 0700 on 980426.

980428:	Applicant from unauthorized absence at 0700 on 980428 (2 days/surrendered).

991013:	NJP for violation of UCMJ, Article 134 (2 specs):
	Specification 1: Drunk and disorderly.
	Specification 2: Resisting arrest.
	Award:  Restriction and extra duty for 30 days, reduction to E-2 (15 days suspended for 3 months).  No indication of appeal in the record. [Extracted from C.O. letter to CNPC of 000622 recommending Applicant ADMIN SEP]

991215:	Applicant to unauthorized absence at 0700 on 991215.

991216:	Applicant from unauthorized absence at 0700 on 991216 (1 days/surrendered).

000308:	Applicant to unauthorized absence at 0700 on 000308.

000328:           Applicant from unauthorized absence at 0700 on 000328 (20 days/surrendered).

000527:	NJP for violation of UCMJ, Article 86 (2 specs):
	Specification 1: 000515, place of duty.
	Specification 2: 000308, absent from unit until 000328.
Violation of UCMJ, Article 91: 000515, disrespectful in language towards the Officer of the Deck, Naval Station North Island, a Chief Petty Officer, who was then in the execution of his office, by being belligerent with him.
Violation of UCMJ, Article 134: (2 specs):
Specification 1: 000515, drunk and disorderly conduct, which was of a nature to bring discredit upon the armed forces
Specification 2: 000515, consume alcohol while under the age of 21.
	Award:  Forfeiture of $563.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

000611:	NJP for violation of UCMJ, Article 86: (3 specifications).
Specification 1: Did on or about 000528, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 0630 restricted personnel muster.
Specification 2: Did on or about 000602, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1800 Extra Duty.
Specification 3: Did on or about 000528, without authority, fail to go at the time prescribed to his appointed place of duty, to wit: 1100 restricted personnel muster.
	Award:  Confinement on bread and water for 3 days.  No indication of appeal in the record.

000618:	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 and commission of a serious offense.

000618:	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.

000622:	Commanding Officer notified Chief of Naval Personnel that he had authorized the discharge of AA B_ (Applicant) with a general (under honorable conditions) by reason of misconduct-pattern of misconduct and misconduct-commission of a serious offense.  Commanding Officer’s comments:  “AA B_ is incapable of adhering to the rules and regulations of this command and the U.S. Navy and is simply unwilling to conduct himself in a manner conducive to good order and discipline.  

051206:	NDRB documentary record review Docket Number ND05-01129 conducted.  Determination: discharge proper and equitable; relief not warranted.

Service Record was missing elements of the Summary of Service.
*Request for correction of DD Form 214 was made on previous DR.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000723 by reason of misconduct due to commission of a serious offense (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, NDRB discovered impropriety  and inequity in the discharge narrative reason of the Applicant’s service (C and D).  The Board’s vote was unanimous that the characterization of the discharge shall not change, but by a 3 to 2 vote, the narrative reason for discharge shall change to:  Secretarial Authority.  

The Applicant stated that his alcohol dependence contributed to the misconduct that resulted in his discharge. After a review of the Applicant’s record it was discovered the applicant was never screened for Alcohol dependence.  Although the Applicant did not raise the issue of not being properly screened for alcohol dependence, the Board determined inequity in the Applicant’s narrative reason for discharge, based on the Applicant’s 4 violations of UCMJ Article 134 (Drunk and disorderly conduct) and no screening for Alcohol dependence.  

In addition to the Applicant not being screened for alcohol dependence, the Applicant was dual processed for misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  The Commanding Officer directed the Applicant’s discharge with a general characterization but did not clearly state which of the two narrative reasons he chose as the basis of the applicant’s discharge.  The Applicant’s DD Form 214 is likewise unclear as to the basis of the applicant’s discharge.  The Narrative Reason for discharge on the Applicant’s DD Form 214 is commission of a serious offense, but the authority listed is the MILPERSMAN provision is for pattern of misconduct.  Complicating the situation further is the fact that the Applicant could not have been properly discharged for pattern of misconduct because he was never issued a retention warning.  The only remaining basis is commission of a serious offense.  The Board is not convinced the Applicant was not prejudiced by this impropriety.  Therefore the Board vote is to grant partial relief by changing the narrative reason to Secretarial Authority.

The Applicant is claiming post service equity.  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 following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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, (Contempt, disrespect towards a noncommissioned, petty officer),

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