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

FOR OFFICIAL USE ONLY

ex-SMSA, USN
Docket No. ND06-00822

Applicant’s Request

The application for discharge review was received on 20060601.  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 20070322.  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 Issues

Equity – Isolated incidents

Equity – Quality of service

Propriety – Due process

Equity – Post 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 (Member 4)
Character Reference ltr from A_ P. P_, Apprenticeship Coordinator for Pacific 	Northwest Ironworkers and Employees, dated May 22, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000530 - 20000821	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000822		Date of Discharge:  20020517

Length of Service (years, months, days):

	Active:    01  08  26
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  42

Highest Rate:  SMSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)			Behavior:  1.0 (1)		OTA:  2.33

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Armed Forces Expeditionary Medal, Navy and Marine Corps Overseas Service Ribbon

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: 

010109:	NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation; to wit underage drinking in Japan.
	Award:  Forfeiture of ½ months pay for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

010109:	Retention Warning:  Advised of deficiency (CO’s nonjudicial punishment on 010109 for violation of the UCMJ Article 92.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010517:	NJP for violation of UCMJ, Article 86: Absence from unit.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $584.55 per month for 2 months.  No indication of appeal in the record.

010517:	Retention Warning:  Advised of deficiency (CO’s nonjudicial punishment on 010517 for violation of the UCMJ.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010521:	Applicant screened by Alcohol Counselor and E_ B. R_, D.O., LT, MC, US Navy, Department of Psychiatry.  Applicant screened as a result of alcohol related incident wherein the Applicant was found and charged with violation of UCMJ for disobeying lawful order (underage drinking).  The Applicant does appear to meet the DSM IV criteria for Alcohol Dependency.  Recommend patient attend ASAM Level II Alcohol Dependency treatment.  Applicant informed that per OPNAVINST 5350.4C members who incur and alcohol related incident at any time during the screening and treatment process that resulted from a previous alcohol incident, even though treatment may not have been completed, will be processed for administrative separation unless a waiver is obtained from COMNAVPERSCOM. 

011217:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $521.40 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

011217:	Retention Warning:  Advised of deficiency (CO’s nonjudicial punishment on 011217 for violation of the UCMJ Article 92 failure to obey a lawful order), notified of corrective actions (“Be respectful in nature to your immediate supervisors and chain of command, and all officers appointed over you.”) and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

011217:	Retention Warning:  Advised of deficiency (CO’s nonjudicial punishment on 011217 for violation of the UCMJ Article 92 failure to obey a lawful order or regulation.), notified of corrective actions (“Be able to effectively perform your duties, to obey the orders given to you by your immediate supervisors, chain of command, and all officers appointed over you.”) and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020211:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
Violation of UCMJ, Article 91: Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer.
	Award:  Forfeiture of $552.75 per month for 2 months, restriction and extra duty for 45 days and process for administration separation.  No indication of appeal in the record.

020311:	Alcohol Programs Department, USNH Yokosuka, Japan, Staffing Note:  Applicant is currently in treatment for alcohol dependence.  Applicant referred for staffing due to two violations of treatment rules.  Current diagnosis:
	Axis I: 303.90 Alcohol Dependence
	Axis II: 799.9 Diagnosis Deferred on Axis II
	Axis III: none noted
	Axis IV: Military duty
	Axis V: GAF (Current) = 65
	P:  The Applicant is retained in the program on probation.  Any further violations of treatment rules will result in expulsion from the program.
	Signed: J_ H_, Psy. D., LT MSC USNR, Clinical Psychologist.

020315:	Alcohol Programs Department, USNH Yokosuka, Japan, Discharge Note:  The Applicant was released from ASAM Level 2.0 Intensive Outpatient Treatment Program for Alcohol Dependency having achieved the maximum benefit of treatment.  The Applicant is not ready to fully acknowledge the severity of his alcohol problem.  The Applicant was placed in one year continued care program.

020318:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.

020318:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and submit a statement.

020410:	Commanding Officer, USS O’BRIEN (DD-975) recommended discharge with a general (under honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense.  

020514:	CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020517 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 – Isolated incidents:  The Applicant contends that his discharge should be upgraded because the incidents that resulted in his discharge all occurred while on liberty.

Equity – Quality of service: The Applicant contends that his service following September 11, 2001 showed outstanding military bearing and selfless courage.

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 4 retention warnings and 4 nonjudicial punishment proceedings for violations of Articles 86, 91 and 92 (5 specifications) of the UCMJ. Violations of UCMJ Articles 91 and 92 are considered serious offenses 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.

Propriety – Due process:  The Applicant contends that he was not given significant time to appeal his separation.  

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  The record contains no evidence of any wrongdoing by the government during the discharge process.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.

Equity –Post service:  The Applicant submitted a letter of recommendation from his employer.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided one letter of recommendation from his employer as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service,  and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

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 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) and 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