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

FOR OFFICIAL USE ONLY

 ex-SMSA, USN
Docket No. ND06-00978

Applicant’s Request

The application for discharge review was received on 20060724.  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 personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant was represented by the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070815.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as summarized by the Board

1.  Not afforded proper alcohol rehabilitation counseling and treatment
2.  Discharge based on health status rather than misconduct
3.  Post-service conduct

Documentation

Letter from Pastor B_ J_, dtd August 11, 2007
Letter from T_ C., Meeting Chair, dtd August 6, 2007
Medical record, C_ Care Clinic, dtd May 25, 2004
Encounter Report, dtd June 27, 2007 (5 pgs)
Encounter Report, dtd May 30, 2007 (5 pgs)
Transcript, Troy University, dtd June 12, 2006
Certificate of Completion, S_ Substance Abuse Services, dtd May 15, 2006 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USAR (DEP)	19990317 - 19990722	ELS
		USNR (DEP)	20001031 - 20001113	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20001114		Date of Discharge:  20030711

Length of Service (years, months, days):

	Active:    02  07  28
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  53

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)		 Behavior:  1.0 (1)		OTA:  1.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal (1), Sea Service Deployment Ribbon (1), Navy “E” Award.

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: 

001031:	Pre-service waiver for U.S. Army DEP discharge and attempted burglary granted.

010703:	NJP for violation of UCMJ, Article 92: Failure to obey.
	Award:  Forfeiture of ½ pay per month for 1 month (susp for 6 months), restriction and extra duty for 10 days, reduction to E-2 (susp for 6 months), oral reprimand.  No indication of appeal in the record.

010703:	Retention Warning:  Advised of deficiency (Failure to obey.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030201:	NJP for violation of UCMJ, Article 86: Absent from place of duty.
	Specification: In that Signalman Third Class D_ W. D_ (Applicant), U.S. Navy, USS NORMANDY, on active duty, did on or about 1700 021230, without authority, absent himself from his place of duty at which he was required to be, to wit: Duty section 3, USS NORMANDY, located at pier 5, Norfolk Naval Station, Norfolk VA, and did remain so absent until on or about 0230, 021231.  (A period of about 8 hrs.)
Violation of UCMJ, Article 112: Drunk on duty.
Specification: : In that Signalman Third Class D_ W. D_, U.S. Navy, USS NORMANDY, on active duty, was, while onboard USS NORMANDY located Pier (5), Norfolk Naval Station, Norfolk VA, on or about 0430, 021231, found drunk while on duty upon returning to USS NORMANDY from being U/A for 8 hrs.  (SVM’s BAC was .025%, at 0430, 021231.)
	Award:  Restriction for 60 days, reduction to E-3.  No indication of appeal in the record.

030202:	Retention Warning:  Advised of deficiency (Unauthorized absence and drunk on duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030626:	NJP for violation of UCMJ, Article 86: Absent from place of duty.
	Specification: In that Signalman Seaman D_ W. D_ (Applicant), U.S. Navy, USS NORMANDY, on active duty, did on or about 1145, 030622, without authority, absent himself from his place of duty at which hew as required to be, to wit: USS NORMANDY, located at pier 4, Norfolk Naval Station, Norfolk VA, and did remain so absent until on or about 1615, 030622.  (A period of about 4 hrs and 30 min.)
Violation of UCMJ, Article 92: Dereliction in the performance of his duties.
Specification: In that Signalman Seaman D_ W. D_, U.S. Navy, on active duty, onboard USS NORMANDY, who knew of his duties onboard USS NORMANDY then located at pier 4, Norfolk Naval Station, Norfolk VA, did, on or about 0615, 030622, was derelict in the performance of those duties in that he willfully consumed an alcoholic beverage during his duty day as he admitted to when questioned by the officer of the deck.
	Award:  Forfeiture of $721.05 per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

030627:	Applicant notified of intended recommendation for discharge by reason of misconduct - pattern of misconduct.

030627:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030702:	Commanding Officer, USS NORMANDY (CG 60), recommended discharge under other than honorable conditions by reason of misconduct due a pattern of misconduct.  Commanding Officer’s comments:  “Based on the evidence in enclosure (2) through (8), and despite continuous efforts by the chain of command to counsel and mentor SMSA D_ (Applicant), I have determined that SMSA D_ is unable to conform to naval standards of conduct, discipline, ad performance.  Based on the evidence in enclosure (2) through (8), pattern of misconduct as defined in reference (b) is substantiated.  Member was presented Administrative Separation Processing Notice-Administrative Board Procedure (NAVPERS 1910/31) for reason of misconduct due to pattern of misconduct on 030627 and chose to waive all rights.  I recommend member be given an administrative separation.  I further recommend the discharge be characterized as Other Than Honorable since SMSA D_’s conduct constituted a significant departure from conduct expected of members of the naval service.”

030707	COMCRUDESGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

050304:	NDRB documentary record review Docket Number ND04-01039 conducted.  Determination: discharge proper and equitable; relief not warranted.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030711 by reason of misconduct due to a pattern of misconduct (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).  

Issue 1 (Propriety/Equity):  While styled a propriety issue, the Board weighed this issue under propriety and equity standards.  The Applicant contends that had he received proper counseling and treatment for his alcohol related incident, he likely would not have engaged in a pattern of misconduct.  The Board noted that the Applicant’s last two NJPs were alcohol related incidents, and that the record did not demonstrate that the Applicant had been evaluated for alcohol abuse by appropriate medical authority.  While it appeared to the Board that the Applicant should have been screened regarding his alcohol use, the Board did not find that the apparent failure to do so was prejudicial error.  

Issue 2 (Propriety):  The Applicant contends that his discharge was really due to his potential medical condition—potentially HIV positive—rather than the incidents of misconduct.  The Board found that the reason for discharge was amply supported by the evidence in the record and that the Applicant’s contention was completely speculative.  The Board found no evidence, and the Applicant provided none, in support of this contention.  

Issue 3 (Equity):  The Applicant’s service was marred by 2 retention warnings and 3 nonjudicial punishment proceedings for violations of Articles 86, 92 and 112 of the UCMJ.  The Applicant’s service performance and conduct form the primary basis for determining the character of his service.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  The Applicant’s post-service conduct included serious substance abuse (DUI, marijuana and cocaine use).  While the Board commends the Applicant for his relatively recent sobriety, after a complete review of the entire record and the Applicant’s evidence, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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.

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