that the Board consider provisions of SECNAVINST 5420

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




                                         ex-FR, USN
                                    Docket No. ND04-01380

Applicant’s Request

The application for discharge review was received on 20040902. The Applicant requests the
characterization of service received at the time of discharge be changed to general (under
honorable conditions). The Applicant requests a documentary record review. The Applicant did
not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. 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/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article
3630600.




The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and
Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent
Regulation/Law, Part IV - Information for the Applicant.
Docket No. ND04-01380


                PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “During the time of my enlistment I had a problem with addiction. I am currently in recovery
and have had numerous years of absence from drugs. This problem at the time of my service
caused many of the disciplinary episodes that led to my early separation. Since that time I have
completed my A.A. Degree at Santa Fe Community College in Gainesville FL, and currently am
pursuing my Bachelors degree in Journalism at University of North Florida”

2. “The applicant indicated above requested that Veterans of Foreign Wars act as counsel
concerning his application. His records were reviewed November 16, 2004 and the following
comments are hereby submitted.

Our review of the service record reveals that this former member had served in a combat
environment and received the South West Asia Service Medal with 2 Stars and the Kuwait
Liberation Medal.

The record indicates that he attended the Alcohol Rehabilitation Center, successfully completed
the program, in Norfolk Virginia during his first admittance. However, he failed Level III of the
rehabilitation program.

The veteran contends that his discharge should be upgraded to General Under Honorable
Discharge.

EQUITY ISSUE: Based on our review of the evidentiary record and on behalf of this former
member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure
(1), chapter 9, as it pertains to quality of service as evidence by combat service, awards and
decorations.

We refer this case to the Board for their careful and compassionate consideration. We petition and
ask that the Navy Discharge Review Board's final decision will reflect sound equitable principles
consistent within the laws, regulations, policies, and discretion as promulgated by title 10 U.S.C.
section 1553, and set forth in 32 C.F.R. part 724 and SECNAVINST 5420.174c, see enclosure (1).

Sincerely,
W_ G_ C_ (Applicant's representative)/
National Service Supervisor
Washington (DC) Regional Office”



Documentation


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Docket No. ND04-01380



In addition to the service record, the following additional documentation, submitted by the Applicant,
was considered:

    University of North Florida unofficial transcript (3 pages)




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Docket No. ND04-01380


                            PART II - SUMMARY OF SERVICE

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

       Inactive: USNR (DEP)          900323 - 900903        COG
       Active: None

Period of Service Under Review:

Date of Enlistment: 900904           Date of Discharge: 920930

Length of Service (years, months, days):

       Active: 02 00 27
       Inactive: None

Age at Entry: 24                     Years Contracted: 4

Education Level: 12                  AFQT: 46

Highest Rate: FA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.70 (2)         Behavior: 2.40 (2)            OTA: 2.70

Military Decorations: None

Unit/Campaign/Service Awards: SASM with 2 Bronze Stars, KLM, BEA, NUC, NDSM, SSDR

Days of Unauthorized Absence: 26

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of misconduct,
authority: NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

910513:        Applicant to unauthorized absence 0700, 910513.

910515:        Applicant from unauthorized absence 1200, 910515 (2 days/surrendered).

910523:        NJP for violation of UCMJ, Article 86: Unauthorized absence.



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Docket No. ND04-01380

            Award: Forfeiture of $250 per month for 1 month, restriction for 7 days. No
            indication of appeal in the record.

911214:     Applicant to unauthorized absence 0730, 911214.

920106:     Applicant from unauthorized absence 0700, 920106 (24 days/surrendered).

920124:     NJP for violation of UCMJ, Article 86: Unauthorized absence for 24 days.
            Award: Forfeiture of $426 per month for 1 month, restriction and extra duty for 30
            days, reduction to E-1. Restriction and extra duty for 14 days and reduction
            suspended for 90 days. No indication of appeal in the record.

920212:     Retention Warning from USS GUNSTON HALL (LSD-44): Advised of deficiency
            (Delinquency in the following PQS: 3M-301 Maintenance person.), notified of
            corrective actions and assistance available, advised of consequences of further
            deficiencies, and issued discharge warning.

920316:     Medical: A: Psychological EOTH dependence. P: Recommend Level III Rx. Will
            inform DAPA and C.O.C. of findings.

920422:     Applicant to ARC Norfolk, for alcohol rehabilitation due to alcohol dependence.

920529:     Applicant successfully completed treatment. Diagnosis remains unchanged.

920723:     NJP for violation of UCMJ, Article 90: Willful disobedience of superior
            commissioned officer.
            Award: Forfeiture of $441 per month for 1 month, reduction to E-1. No indication
            of appeal in the record.

920723:     Retention Warning: No further information found in service record. [Extracted from
            Commanding Officer’s message dated 920810 and 920903.]

920801:     Medical Sick Call: ETOH/substance abuse dependent. P: Referred to HM1 for
            further evaluation. MO addendum: A: Polydrug abuse/dependence. B: Applicant
            in need of further EOTH/drug rehabilitation.

920808:     USS GUNSTON HALL (LSD-44) notified Applicant of intended recommendation
            for discharge under other than honorable conditions by reason of misconduct due to
            a pattern of misconduct.

920808:     Applicant advised of rights and having elected not to consult with counsel certified
            under UCMJ Article 27B, elected to waive all rights except the right to obtain
            copies of the documents used to support the basis for the separation.




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Docket No. ND04-01380

920810:     Commanding Officer recommended discharge under other than honorable
            conditions by reason of misconduct due to a pattern of misconduct.

920903:     Applicant was found polydrug and ETOH dependence. Failed Level III treatment.
            Recommend VA treatment upon separation.

920903:     USS GUNSTON HALL (LSD-44) notified Applicant of intended recommendation
            for discharge under other than honorable conditions by reason of misconduct due to
            a pattern of misconduct and misconduct due to drug abuse as evidenced by
            NAVDRUGLAB Norfolk message 251010Z AUG 92.

920903:     Applicant advised of rights and having elected not to consult with counsel certified
            under UCMJ Article 27B, elected to waive all rights except the right to obtain
            copies of the documents used to support the basis for the separation.

920903:     Commanding Officer recommended discharge under other than honorable
            conditions by reason of misconduct due to a pattern of misconduct and misconduct
            due to drug abuse.

920922:     BUPERS directed the Applicant's discharge under other than honorable conditions
            by reason of misconduct due to a pattern of misconduct.

920928:     NJP for violation of UCMJ, Article 134: Disorderly conduct and drunkenness,
            violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 91:
            Insubordinate conduct toward a warrant officer, noncommissioned officer or petty
            officer.
            Award: Forfeiture of $100 per month for 1 month. No indication of appeal in the
            record.

920928:     Applicant declined in-patient treatment for drug/alcohol dependence.




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Docket No. ND04-01380


  PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920930 under other than honorable conditions for misconduct
due to a pattern of misconduct (A). The Board presumed regularity in the conduct of governmental
affairs (B). 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).

Issues 1-2: Normally, to permit relief, an error or injustice must have existed during the period of
enlistment in question. No such error or injustice occurred during the Applicant’s enlistment.
While he may feel that his drug and alcohol problems were contributing factors, they do not
mitigate the Applicant’s disobedience of the orders and directives that regulate good order and
discipline in the naval service, demonstrating he was unsuitable for further service. His service
record is marred by award of nonjudicial punishment (NJP) on four separate occasions for
violating the UCMJ, Articles 86, 90, 91 128 and 134, failure to complete alcohol rehabilitation and
positive urinalysis for illegal drugs thus substantiating the misconduct. The Applicant’s summary
of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate
good order and discipline in the naval service, demonstrating he was unsuitable for further service.
An upgrade to general (under honorable conditions) would be inappropriate. Relief denied.

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. However, 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. Verifiable proof of any post-service accomplishments must be provided in order for
the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than
honorable discharge. Evidence of a positive employment record, a drug and alcohol free lifestyle,
and certification of community service and non-involvement with civil authorities are examples of
verifiable proof that can be submitted. At this time, the Board determined that the documentation
submitted by the Applicant does not mitigate his misconduct while on active duty.

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 other evidence
related to his discharge at that time. Representation at a personal appearance hearing is
recommended but not required.




Pertinent Regulation/Law (at time of discharge)



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Docket No. ND04-01380

A. Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF
MISCONDUCT – A PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review
Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR
DEPARTMENTAL DISCHARGE REVIEW.

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.




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Docket No. ND04-01380


                    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 Directive 1332.28,
you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read
Enclosure (5) of the Directive 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 Directive 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




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