Author: CAP
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Docket No. ND06-00072

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

FOR OFFICIAL USE ONLY

ex-SA, USNR
Docket No. ND06-00072

Applicant’s Request

The application for discharge review was received on 20051007.  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 20060721.  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 commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached letter: 

“To Whom it May Concern:

In June of 2004, I submitted an application for an upgrade of discharge.  Since then I have relocated twice.  I have absolutely no idea what the current status is of my claim.  Therefore, I am returning the application as well as this letter.  Upon review of my original claim I’ve come to the conclusion I submitted it in a hasty manner having not really taken into account the importance of this claim to my life.  Therefore, I’d like to take my time this day to state exactly why I feel I deserve to have my discharge type upgraded to an honorable one.  I am now aware that this is one of the most important issues surrounding my life.

My original intention in joining the military had been to get experience and education I could not get in school.  I had planned to become a peace officer one day, along with my cousin who joined up with me.  I had great hopes and ambition towards the future.  I was stationed after boot camp to the U. S. S.  -Boone F.F.G.-28 [sic].  During my enlistment, I was repeatedly told the possibility of advancement and acquiring of a M.O.S. from the undesignated position where I was, none to hopeful.  Up to that point in my life I had always tried to do the best that I could, to never do a bad thing in my life.  As time progressed, I saw no opportunity, as was previously stated to me.  All designations were up to capacity and the command would not allow me to go to an M.O.S.  School we had no positions for.  I became depressed.  I was away from everything I knew and I wasn’t good enough to go on.  Depression gave way for isolation, and then drinking.  I tried many times to speak to my peers and those in authority at my command with no avail.  I was worked many hard hours underway in the kitchen.  I used liberty as a stress reliever by indulging in my drinking.

Many times did I drink with my superiors and many times I was invited to drink.  It seemed this was the only time to be social and I so wanted to belong.  The training I received in boot camp definitely made me a stronger individual but not one without feeling.  I am still a being of emotion.  I would write home about my affairs and I was asked to speak to someone.  I had my chance in Italy while moored along another U.S.  Ship whose name I don’t recall.  I went over, under the guise of receiving help for my smoking.  I told the staff there a little of my problems and they offered to help.  I was to be recommended for rehabilitation.  Upon my command’s discovery that I went outside my chain of command I was reprimanded and nothing further.  Needless to say my depression overwhelmed me and I became self-destructive.  In an altercation with some sailors from another ship I fractured my leg and was sent away.  I was then stationed at Jacksonville NAS for my recovery.

I no longer wanted help and I was consumed by my thoughts and engulfed in alcohol day and night.  At that time, It seemed the world was a little less crueler, that things may not be so bad, or so it seemed I was housed In the 2000 barracks along with other outpatients who ranged in aliments from broken jaws to suicidal bi-polar tendencies.  We all seemed to have a burden of overwhelming issues.  It also seemed we all coped with them in the same manner, by drinking.  At some point during my fracture recovery, I was approached by a Chief Officer who also resided in the barracks He saw my drinking as an issue because of my age.  I was not ever committing illegal or immoral conduct outside of my drinking.  I was sent to rehab.

While at rehab, I honestly gave it my up most effort to follow program guidelines and suggestions which turned out to be my ultimate demise.  An instructor one day, conducting his lecture informed a group of us of our “alcoholism.” I see now what I had not seen then, which was in fact my disease.  I tried for so long to fight it.  I could not get myself to admit I was powerless over anything.  After all, I was the master of my destiny.  The mind I’ve been told over many years is capable of the imaginable in it’s uncharted capabilities.  I would not give up on myself.  Another instructor whom I wish with all my might that I could recall his name, stated that an individual may learn with great veracity if one was an “alcoholic.” He said if one can drink a single alcoholic beverage and stop, he was not a alcoholic.  That same night we were released on liberty, and that same night I went out and had a drink and was able to stop.  Content in my righteousness I headed home back to the rehabilitation center.  I was given a breathalyzer and blew a .01.  I was scared.  The blood work done came back a alcohol level of 00.  I was discharged from the program and consequently set up for Captain’s Mass for discharge.  I did not want to leave the Navy.  I was very proud of whom I was because of it.  I was starting to see things in a new light outside of my command.  I begged for another chance but was to scared to speak at my own hearing.  I was discharged for MISCONDUCT under the character type of GENERAL.

 I don’t wish to point the finger at someone else for my own shortcomings.  I accept the fact now that my undoing was my own.  I should have been stronger.  I should have been wiser but I wasn’t.  I still managed to become somewhat functional after these series of events, occasionally getting myself in some predicament by my addiction.  I still and always have loved my country.  I would die for it.  I re-enlisted in the California Army National Guard where I proudly served for over 4 years.  Unfortunately, my time was cut short due to my drinking.  I was in an automobile accident where I hurt someone.  Fortunately no one died.  I couldn’t bare the grief of killing someone I sworn to give my life for.  These were horrible times for me.  My addiction led me places I never wanted to go to like where I am now.  It’s no one’s fault but my own.  Still though I tried to be a model citizen outside my habits I was even given many awards by government for civic duty which I am attaching copies of.  I’m at a point in my life where I’ve had enough and am reclaiming my life.

I’ve always tried to be an honorable man.  I’ve been a civil servant most of my life.  I am going to go to school very shortly on my own.  I will be starting at the bottom.  I have long ago lost the 2 G.I. Bills because of my discharge and a Navy college fund.  Even so, I will persevere in my ambitions.  I will seek help and manage my issues that I shall carry for life.  I have made many bad choices but not more than the right ones.  Please consider upgrading me to another level of discharge.  I feel I gave my best with what knowledge I had at the time.  I never complained about the blood and sweat I should give for my Country, only my opportunities afforded.  If you should need more information I have not provided please inform me.  I will do the best I can with the resources I have readily available.  I understand that your time and resources are also at capacity.  I do appreciate what you do and I shall await your response patiently.  GOD BLESS YOU.

Sincerely

E_ B_ R_ (Applicant)”

Documentation

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

Applicant’s DD Form 214  (Service 2)
Army Reserve Status and Address Verification, dtd March 25, 2004
Certificate of Special of Congressional Recognition, dtd November 13, 2003
Certificate of Recognition, dtd November 13, 2003
California State Assembly Certificate of Recognition, dtd November 13, 2003
California Legislature Certificate of Recognition, dtd November 13, 2003
Enlisted Performance Evaluation Report for period ending December 04, 1995
Cover letter, dtd November 15, 2005
Memorandum from C_ L. B_, SFC, CA ARNG, dtd January 29, 2001

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:  19941020		Date of Discharge:  19960726

Length of Service (years, months, days):

	Active:    01  07  21  
	Inactive:  00  01  16

Time Lost During This Period (days):  

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18 

Years Contracted:  8

Education Level:  12				AFQT:  55

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (1)		Behavior:  3.4 (1)			OTA:  3.6

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medial, Sea Service Deployment Ribbon

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events: 

941206:	Commenced active duty for a period of 3 years.

951108:	Retention Warning:  Advised of deficiency (Misconduct in the case of alcohol abuse incident.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

951201:	NJP for violation of UCMJ, Article 92:
	Specification1: In that SA E_ B_ R_ (Applicant), United States Navy, USS Boone FFG-28, then located at Trieste, Italy, while on active duty, having knowledge of a lawful written order issued by the Commanding Officer, USS Boone FFG-28, to wit:  P-13, Administrative Remarks, concerning (MISCONDUCT IN THE CASE OF ALCOHOL ABUSE INCIDENTS) dated 08 November 1995, an order which it was his duty to obey, did, while on liberty in Trieste, Italy, on or about 2237, 29 November 1995, Fail to obey the same by (Wrongfully) consuming alcohol beverage while under the age of twenty-one.
Award:  Forfeiture of $478.00 per month for 1 month, restriction for 45 days.  No indication of appeal in the record.

960227:	Naval Alcohol Rehabilitation Center Evaluation:  
SA R_ (Applicant) was referred to Level III alcohol treatment at NAVALREHCEN Jacksonville FL. as a result of first breaking his leg getting in the middle of a fight while intoxicated on liberty.  While on medical hold at the Naval Hospital he was caught drinking underage and sent to CAAC for an evaluation.  SA R_ (Applicant) was evaluated by the military psychologist on 27 February 1996 at NAVALREHCEN JAX and found to be alcohol dependent with physiological dependence.  

INITIAL DIAGNOSIS
DSM-IV  
AXIS I:	Alcohol Dependence with Physiological Dependence (303. 90)
		Nicotine Dependence (305.10)
		AXIS II:	No Diagnosis (V71.09)
AXIS III:	Left Ankle Fracture Post ORIF (ICD9 824.9)
Early Repolarization (ICD9 427.9)

960227:	Content to submit to Breathalyzer Examination consent form:  Applicant briefed that upon return from liberty status on the weekends, and at any point during treatment, he may be required to submit to various breathalyzer examinations.  

960318:	Applicant discharged from Level III treatment.  
Discharge Report:  “...During the initial assessment, SA R_ (Applicant) stated that he knows he needs treatment.  He stated that he accepts the severity of his alcohol problem.  He exhibited an awareness of his addiction.  During his third week of treatment he returned from liberty with the smell of alcohol about him and was tested for same.  His blood level was .01.  On 18 March 1996 the Patient Disposition Board met and the decision was made to terminate SA R_ (Applicant) from treatment and return him to his command as a treatment failure.”

FINAL DIAGNOSIS
DSM.IV 	
AXIS I:	Alcohol Dependence with Physiological 
Dependence (303.90) 
Nicotine Dependence (305.10)
AXIS II 	No Diagnosis (V71 09)
AXIS III 	Left Ankle Fracture Post ORIF (ICD9 824.9)
Early Repolarization (ICD9 427.9)
Hypertriglyceridemia (ICD9 272 1)
Abnormal Liver Functions Secondary to A1cohol (ICD9 794.8)

Applicant notified that he has been evaluated as nonamenable to rehabilitation for alcohol dependence due to a violation of rules and regulations of the Naval Alcohol Rehabilitation Center, Jacksonville, Florida, specifically, consuming alcoholic beverages while in treatment.  In accordance with OPNAVINST 5350.4B and NAVMILPERSMAN 3630550, recommend processing for administrative separation.

960325:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by the findings at Commanding Officer’s nonjudicial punishment and, by reason of alcohol rehabilitation failure as evidenced by your disenrollment from a Level III alcohol rehabilitation treatment.  

960411:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

960510:	An Administrative Discharge Board (ADB), based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and that the Applicant was an Alcohol Rehabilitation Failure.  The ADB unanimously recommended separation under honorable conditions (general).

960603:	Commanding Officer, Naval Hospital, Jacksonville, FL, recommended to Chief of Naval Personnel that the Applicant be discharged with a general (under honorable conditions) character of service by reason of misconduct due to commission of a serious offense as evidenced by the findings at the Commanding Officer’s NJP that he violated a lawful order and by reason of alcohol rehabilitation failure as evidenced by his disenrollment from a level III alcohol rehabilitation treatment program.  Commanding Officer’s comments:  “I concur with the board’s findings and recommendations.  SA R_ (Applicant)’s misconduct and alcohol abuse are not consistent with this command or of the Navy.  Retention of SA R (Applicant) would be detrimental to good order and discipline and to the operation of this command.  ...counsel for Respondent asserts that HMC T_ was not an impartial member of the board due to his professional relationship with HMC C_, a government witness.  As I stated on the day of the board, I have complete confidence in HMC T_’s professionalism and his ability to separate official duties from personal relationships.  HMC C_ is a well-known member of this command as the DAPA and PRT Coordinator.  It would be very difficult to find another member of this command who has not had some contact with him.  Even if HMC T_’s vote was not considered, a majority would have found that SA R_ had committed misconduct and should be separated with a characterization of General.  Additionally, SA R_ (Applicant) has requested to be placed on Administrative leave.

960710:	BUPERS, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960726 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, the Board found that the discharge was proper and equitable (C and D).  

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 and nonjudicial punishment proceedings for violation of Article 92 of the UCMJ.  The Applicant’s violation of Article 92 of the UCMJ is considered the commission of a serious offense.  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.

The Applicant implies that his discharge is inequitable because he drank alcohol due to being depressed and his depression was the result of not being able to obtain a designation.  The Applicant further implies that his discharge is inequitable because he drank an alcoholic beverage as a result of a rehabilitation instructor informing him that if one could “drink a single alcohol beverage and stop, he was not an alcoholic.”  While the Applicant may feel that his inability to obtain a rating was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  Further, the evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant implies that his discharge should be upgraded because he solicited help for his “problems” but that his chain of command did not assist him.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he requested assistance or treatment which was refused.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show that he was denied assistance such action would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Relief denied.  

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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.  To support post-service consideration, the Applicant provided documentation attesting to his community service efforts and California Army National Guard affiliation.  Additional examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

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.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 92, failure to obey an 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 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