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Docket No. ND06-00458

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

FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-00458

Applicant’s Request

The application for discharge review was received on 20060210.  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 “Convenience of the government.”  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 20061214.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, impropriety and inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the characterization of discharge and the reason for discharge shall change to: HONORABLE /SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

PART I -  ISSUES AND DOCUMENTATION

Decisional Issues, as stated

Impropriety:  Did not meet discharge criteria for alcohol rehab failure
Impropriety:  Discharged for old misconduct
Equity:  Characterization too harsh for conduct
Equity:  Medical condition
Equity:  Youth and Immaturity
Equity:  Post Service

Documentation

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

Applicant’s DD Form 214 (Service 2)
Statement from Applicant (2 pgs)
Excerpts from Service Record (16 pgs)
Certificate of Completion for Teaching English as a Foreign Language Introductory Course from Tokyo Language Art College, dtd September, 1997
Bachelor of Art Degree from the University of Hawaii, dtd May 15, 2005
Certificate of Completion for Academic Program of the Alternate Route of Certification from the Board of Governors for Higher Education, dtd August 10, 2005
Dean’s List ltr from J_ R. H, Dean, University of Hawaii at Manoa, dtd May 20, 2005
Official Transcript from the University of Hawaii at Manoa, dtd July 27, 2005 (2 pgs)
Academic Reference ltr from R_ L. R_, Professor of History, University of Hawaii, dtd July 1, 2005
Letter of Recommendation from N_ K_, M.D., Department of Obstetrics and Gynecogoly Anan Kyoei Hospital, dtd June 19, 2005
Letter of Recommendation from V_ C_, grade 8 team teacher, Martin Kellogg Middle School, dtd November 14, 2005
Letter of Recommendation from K_ B_, dtd October 20, 2005
Thank you card from students 
Thank you ltr from T_ C_ (student), dtd December 10, 2005
Letter of Recommendation from T_ M_, Conrad High School, undated
Letter of Recommendation from J_ A. S_, Ph.D., Principal, Martin Kellogg Middle School, dtd January 31, 2006
Letter from K_ C_, Applicant’s wife, dtd January 2, 2006 (2 pgs)
Closing Settlement Statement
Letter of Confirmation for completion of the 2005 Connecticut Alternate Route to Certification I Program on August 10, 2005, dtd August 16, 2005
Letter of Confirmation for completion of the 2005 Connecticut Alternate Route to Certification Summer Program (ARC) on August 10, 2005, dtd August 16, 2005
Resume (2 pgs)
Remarks Attachments from Applicant (4 pgs) 
Letter from Applicant, dtd February 21, 2006
Police Record Report, dtd February 21, 2006
Photocopy of Applicant’s, wife and kids Social Security cards
Marriage Certificate
Photocopy of Applicant’s Faculty/Staff Identification
W-2 Wage and Tax Statement

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900531 - 19900905	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19900906		Date of Discharge:  19931020

Length of Service (years, months, days):

	Active:    03  01  15  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  13				AFQT:  71

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (4) 		Behavior:  3.8 (4) 		OTA:  3.75

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

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: 

900910:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into Naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse.  8/89 – 1/90 (5 Parking violations) Tempe, AZ.  Arizona University Campus (paid $115.00 total).  Discharge warning issued.

901003:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into Naval service as evidenced by your failure to disclose your pre-service involvement with civil authorities consisting of the following: Failure to yield/no insurance, 2/90, Tempe, AZ (paid $150.00 fine).  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

920325:	NJP for violation of UCMJ, Article 121: Did on or about 920211 at or near Naval Station, San Diego, CA steal, a DOD Decal, of a value unknown, property of the U.S. Government.
Award:  Forfeiture of $200.00 pay per month for 2 months, restriction to NAVSTA and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

920402:	Retention Warning:  Advised of deficiency (VUCMJ, Article 121 (Larceny), on or about 920211, steal, a DOD Decal, of a value unknown, property of the U.S. Government as evidenced by CO’s NJP held 920325.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

Undated:	Substance Abuse Screen, Naval Station Branch Clinic.  Referred by DAPA.  Symptoms: Intoxicates himself once a week (6-8 beers), drinks more than intended, unsuccessful efforts to control use, Interfers with responsibility or safety, uses knowing it causes other problems.  Other history:  Multiple family, peers, and parents with ETOH abuse.  Assessment: Substance dependency.  Plan: Level III Program (6 weeks inpatient)

920717:	Aftercare Plan:  Patient will be in aftercare for not less than one year.  Attend weekly meetings with command representative.  If available , attend weekly meetings with other personnel in aftercare, attend Alcoholics Anonymous meetings at least 4 times weekly for twelve months. 

930519:	Psychiatric Consult and Report.  23 year old requesting referral to Mental Health.  Feels very anxious, apprehensive, unable to cope.  History of level III alchohol detox.  Persisting over 6 weeks, is aware of increasing pressure.  “If can’t get well I’d rather die.”  Provisional diagnosis: Anxiety, depression.  Diagnosis:  Axis I:  Alcohol dependent, in remission.
	Axis II:  Dependent personality
	Recommendation:  1. fit for return to full duty
	2. Supportive insight _ therapy was given
	3. encourage at least 4 AA meetings/week
	4. All lab work up for possible med in the future
	5. return next week for F/U.  J_ U. C. H_, M.D. CAPTAIN/MC/USN

930614:	Mbr for F/U.  Reported anxiety attack, fear of losing control, nervousness, afraid of people in public for no reason at all in the present few days.  Low self esteem, lack of confidence.  Diagnosis:  Alcohol dependent in remission x 1 year/ Anxiety NOS
	Recommendation: 1) Supportive insight oriented psychotherapy was given
	2) Xanax 0.5 mg Disp #10 ½ tab po
	3) F/U in one week
	Saw service member in F/U, reported doing well w/ xanax.  Took ½ tab TID x 4 days then only _ tab yesterday and ½ tab xanax _ tib prn.  Disp # TEN.  F/U 1 week. J_ U. C. H_, M.D. CAPTAIN/MC/USN

930628:	Saw this service member in follow up prior to his overseas duty.  PT reported apprehension about going overseas and his sea duty.  Concern about situation w/ Iraq.  Request xanax refill in case of nervousness & nightmare.  Patient reported he still has several tablets from last week, but worry about long fly and new command & new environment.  Diagnosis:  Alcohol dependence in remission.  Dependent and obsessive compulsive personality.  Recommend:  Supportive insight oriented psychotherapy was given. 2) encourage cont. AA meetings & supportive counseling.  
	3) Xanax .05 mg ½ tab PO TIB prn disp # 20.  4)  psychiatrically fit for full duty & fully responsible for his behavior. J_ U. C. H_, M.D. CAPTAIN/MC/USN

930730:	23 Year old MM3 checked into command taking xanax for multiple personality disorders.  Psych found patient fit for full duty while taking medication.  Patient dependent on meds.  Do not carry onboard.  Request evaluation and fitness for duty.  Provisional diagnosis:  dependent personality disorder/ dependent on alcohol.

930814:	Evaluated this 23 YO single male this date.  It is felt that this man has Panic Disorder with agoraphobia.  In that he has been treated with xanax and in that he remains symptomatic  _ have elected to med evac him for further evaluation and disposition.  My provisional diagnosis is.
	Axis I:  300.01 Panic Disorder and agoraphobia
	Axis II:  V 71.09
	Axis III:  R/O optic  __
	Upon completion of evaluation in CONUS further disposition can be made until then we have established to continue the xanax.  It is further recommended that this man not be returned to sea duty.

930823:	Psychiatric evaluation by Naval Medical Center, San Diego CA, Department of Psychiatry.  Chief Complaint: “I’m feeling anxious all the time…I can’t take the pressure of shipboard life w/o Xanax.  I’ve started to drink again and don’t feel I can control it”.  Patient was treated for symptoms of anxiety and depression by CAPT H_ at FMHU 32^nd Street on 23 June while patient was stationed at SIMA.  Dr. _ placed him on xanax which he reported significantly improved his mood and ability to function.  Five weeks ago he transferred to USS Halsey, currently deployed to ESPAC.  He experienced a return of the anxiety and dysphoria, and requested a medication refill in Bahrain since he felt unable to cope with shipboard stress without it.  The psychologist at ASU Bahrain determined he was unfit for sea duty and MEDEVAC’d him to NMCSD.
AXIS I: Alcohol Dependence Anxiety Disorder NOS
	AXIS II: Borderline traits
	AXIS III: no known illness
	Recommendation:
1. The patient is medically fit for full duty.  Due to his lapse in drinking he is a Level III Alcohol Treatment Aftercare Failure and is Strongly recommended for EXPEDITIOUS Administrative Separation IAW OPNAV 5350.4B.
2. Although he is not a suicidal risk at present, he may become a threat to harm himself directly or indirectly should he be returned to sea duty.
3. Due to the patient’s long history of self-medicating behavior.  It is strongly recommended that he not be given psychoactive medication.  Local Navy pharmacies have been notified to refuse issue of such medication to this patient.
4. The patient is advised not to drink alcohol, and to resume the treatment program he has allowed to lapse.
5. He is scheduled to meet with Mr. V_ of 32^nd St. MHU at 0800 Fri 27 Aug 93, who will schedule followup tx with Dr H_.
6. The patient had been informed of these recommendations.
7. Point of contact is Dr. C_ at _.
 
930920:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of serious offense, to wit: steal a DOD decal, of unknown value, property of the U.S. Government; and alcohol abuse rehabilitation failure as evidenced by failure through inability or refusal to participate in, cooperate in, or successfully complete a prescribed course of treatment.

930922:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

931006:	An Administrative Discharge Board, 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, to wit: steal a DOD decal, of unknown value, property of the U.S, Government; and alcohol abuse rehabilitation failure through inability or refusal to participate in, cooperate in, or successfully complete a prescribed course of treatment, that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).

931007:	Commanding Officer, Transient Personnel Unit, San Diego, recommended discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and alcohol abuse rehabilitation failure.  Commanding Officer’s comments:  “I concur with the findings and recommendation of the administrative board.  Recommend MM3 C_ (Applicant) be separated from the naval service with a General Discharge.”

931020:	Commanding Officer, Transient Personnel Unit, San Diego authorized discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

931020:	Applicant discharged.

931103:	MSG from Bupers Advising that Applicant did not qualify for discharge.  “MBR  did not violate the Page 13 counseling/warning entry of 920402 which dates the CO’s decision to retain him.  This entry is legally binding on the Navy.  A return to drinking (without an incident) does not constitute alcohol abuse rehabilitation failure.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931020 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 not proper and equitable (C and D).  

In the course of reviewing the documents provided by the Applicant, the Applicant’s service record (noting the retention warning for misconduct that formed the basis of his discharge), and the message from the Bureau of Personnel, the Naval Discharge Review Board found procedural deficiency in the conduct of Applicant’s discharge.  The Applicant was given notice of discharge for misconduct due to commission of a serious offense and convenience of the government based on alcohol rehabilitation failure.  He was discharged for misconduct due to commission of a serious offense.  Applicant’s separation for the reason of commission of a serious offense was not proper because he had received a retention warning for that misconduct.  That decision to retain him was binding on the Navy.  He could only be separated for misconduct if he violated that warning with subsequent misconduct.  The Board found further that the evidence of record does not support the Applicant’s administrative separation for either commission of a serious offense or alcohol rehabilitation failure as highlighted by the BUPERS message of 19931103.  While the Applicant might have properly been discharged for convenience of the government based on personality disorder, the command did not properly notify him that he faced separation on that basis.  Because he was not notified of that basis, it is not available to this Board.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation.   Therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority.  Relief granted.

Since the Applicant’s separation by reason of misconduct was determined “improper”, the characterization of service should be “type warranted by the service record.”  At the time of the Applicant’s discharge a service member’s service was usually characterized as  honorable unless his performance or conduct fell below 2.8 or his final trait average fell below 3.0.  A review of Applicant’s markings indicates that an honorable discharge was warranted unless there was adverse information that would have warranted any other characterization of service.  Applicant’s performance, behavior, and final trait markings were above the standard required for an honorable discharge.  However, the Applicant’s service record was marred by award of nonjudicial punishment for violation of Article 121 (larceny of a DOD decal), and would normally rate a characterization of service of at least general (under honorable conditions).  After consideration of the command’s decision to retain him after that misconduct, the length of the Applicant’s service, his age,  his medical conditions, his high conduct and performance marks, and Applicant’s post service documentation; the Board determined, by unanimous vote that relief is warranted based on equity grounds and that the characterization of service should be upgraded to “honorable.”  Relief granted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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 121 (larceny).

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