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

FOR OFFICIAL USE ONLY

ex-EM2, USN
Docket No. ND06-00879

Applicant’s Request

The application for discharge review was received on 20060620.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “misconduct or RE-3.”  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 20070405.  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 and reason for 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

Propriety:  Proper discharge procedures were not followed.

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	19910524 – 19920518	COG
	Active:	USNR	19920519 - 19940520	HON
	Inactive:	USNR	19940521 – 19950322	HON
	Inactive:	ANG	19950323 – 19951129	COG
	Inactive:	USNR (DEP)	19951130 - 19960311	COG
	Active:	USN	19960312 - 20010604	HON

Period of Service Under Review:

Date of Enlistment:  20010605		Date of Discharge:  20041122

Length of Service (years, months, days):

	Active:    03  05  18
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  28

Years Contracted:  6

Education Level:  12				AFQT:  44/55

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.4 (5)			Behavior:  3.0 (5)		OTA:  3.66

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Medal(2); National Defense Service Medal(2); Navy Achievement Medal; Navy “E” Ribbon; Armed Forces Expeditionary Medal; Southwest Asia Service Medal(2); Sea Service Deployment 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: 

010605:	Reenlisted this date for a term of 6 years.

011111:	Civil Conviction:  Duval County Courthouse, Jacksonville, FL for driving under the influence DUI (.101%).
Sentence:  Fine $517.50, probation for 6 months, DUI School, license revoked for 6 months, impound vehicle for 10 days, community service for 50 hours, Victim Impact Panel.

020304:	Retention Warning:  Advised of deficiency (Civil conviction in Duval County Court, Jacksonville, Florida on 011111 for driving under the influence DUI (.101%).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued disciplinary and discharge warning.

040509:	Applicant arrested and charged with DUI (BAC .216), unlawful speed and failed to drive within a single lane.

040519:	NJP for violation of UCMJ, Article 86: Unauthorized absence from Branch Medical Clinic on 040510.
	Award:  Extra duty for 10 days, reduction to E-4.  Reduction suspended for 6 months.  No indication of appeal in the record.

040625:	Applicant notified via Notification procedure of recommendation for discharge by reason of Alcohol Rehabilitation Failure and Misconduct due to commission of a serious offense.
	[Extracted from Record of Administrative Board, dated 041014.]

040713:	Applicant admitted to Substance Abuse Rehabilitation Program, Naval Hospital, Jacksonville, FL.

040803:	Applicant discharged from Substance Abuse Rehabilitation Program.  Discharge diagnosis: Alcohol dependence with physiological dependence.  Aftercare program: Applicant required to participate in an aftercare program supervised by command.

040830:	Civil Conviction:  Duval County Courthouse, Jacksonville, FL for violation of DUI (BAC .216).
Sentence:  Fine and court cost of $915.00, jail for 30 days with 2 days credit (to be done on consecutive weekends beginning 040911) probation for 1 year, DUI School, Level II treatment, community service for 75 hours (10 hours per month), immobilize vehicle for 30 days.

040830:	Applicant notified via Administrative Board procedure of recommendation for discharge by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civilian conviction.
	[Extracted from Record of Administrative Board, dated 041014.]

040930:	Administrative Discharge Board members advised that Applicant will not be processed for discharge on the basis of Alcohol Rehabilitation Failure.
[Extracted from Record of Administrative Board, dated 041014.]

040930:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civilian conviction; that such misconduct warranted separation; and by a vote of 2 to 1, recommended discharge under other than honorable conditions.

041027:	Commander, Southeast Regional Maintenance Activity, Mayport, FL, recommended the Applicant be discharged by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to civilian conviction.  Commander’s comments:  “…This member’s performance on the job has been satisfactory…but I feel his personal conduct does not reflect good order and discipline…His history with alcohol has gotten the best of him and the Navy has spent enough time and effort…However, I believe the member does not deserve to be separated with an Other Than Honorable discharge…I therefore request a General (under honorable conditions) discharge.

041105:	Commander, Navy Region Southeast directed the Applicant's discharge by reason of misconduct due to a pattern of misconduct with a characterization of service as general (under honorable conditions).

Service Record contains a partial Administrative Discharge package. 
Service Record was missing some of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041122 by reason of misconduct due to a pattern of misconduct (A) 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 NDRB found that the discharge was proper and equitable (B and C).  The NDRB presumed regularity in the conduct of governmental affairs (D).

The NDRB construed Applicant’s statement, “…the command/Dept of the Navy changing all the required paperwork associated wit the reasoning of the discharge...,” to be a contention that proper procedures were not followed in his case.  The NDRB noted that the record suggests that Applicant was initially notified of proposed separation by reason of Alcohol Rehabilitation Failure; however, was subsequently notified of separation on three bases of misconduct – commission of serious offense, pattern of misconduct, and civilian conviction.  The Notifications and the Applicant’s Acknowledgements of Rights in regard to both are not contained in the record.  However, the record clearly demonstrates that the Applicant was on notice of the bases for discharge that his Administrative Board considered; that the Applicant fully exercised his rights in that proceeding; that the Administrative Board’s conclusions were factually supported; and that the Separation Authority did not err in assigning the Narrative Reason for separation.  Therefore, the NDRB determined that the discharge was proper. 

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 a retention warning, alcohol abuse rehabilitation, a nonjudicial punishment proceeding for violation of Article 86 of the UCMJ, and 2 civil convictions for driving under the influence (DUI), also a violation of Article 111 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.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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), 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.  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