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NAVY | DRB | 1997_Navy | ND97-01324
Original file (ND97-01324.rtf) Auto-classification: Denied


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

ex AKC, USN
Docket No. ND97-01324


 Applicant’s Request
The application for discharge review, received 970828, requested that the characterization of service on the discharge be changed to honorable, and the reason for the discharge be changed. The applicant requested a documentary discharge review, he did not list a representative on the DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980831. The NDRB determined that the discharge improperly and inequitably reflects the quality of service rendered. The discharge shall be changed to: HONORABLE/ ALCOHOL REHABILITATION FAILURE; authority: NAVMILPERSMAN, Article 3630550.

PART I - APPLICANT’S ISSUES (verbatim)


 1. There was no UCMJ/NJP pending over me. I did not commit a crime but a relaps while under severe martial and personal problems.

2. I did not request the discharge. ASWAUTH (A70.06). I was given the option to accept the discharge without opposition or face UCMJ/NJP punishment with significant pay grade reduction. The options were brought to my attention in strict confidentiality from my immediate supervisor and as he put it “All indications that the word coming down from the Commanding Officer”. So I accepted the proposal to avoid unfair punishment. Leaving the Navy with an unblemished 18 years (no NJP’s), SUSTAIN SUPERIOR PERFORMANCE and a Navy Chief, seemed like the only intelligent option to accept at the time.

3. My conduct and efficiency rating/behavior and proficiency marks were (1979-1995) all 4.0 SUSTAIN SUPERIOR PERFORMANCE. ASWAUTH (A92.02).

4. I received awards and decorations. ASWAUTH (A92.04). Navy Achievement Medal, Good Conduct award (4), Enlisted Aviation Warfare, Navy Meritorious Unit Commendation (2), Navy Expeditionary medal (Libyan Campaign), Coastguard Meritorious Unit Commendation, Overseas service (5).

5. There were other Acts of Merit. ASWAUTH (A92.16). Volunteered to serve at Guantanamo Bay Cuba in support of Operation Sea Signal during the Cuban Refugee Crisis (population in excess of 32,000 Cuban men, women and children) OCT 94 – JAN 95. Received numerous Letters of Appreciation, many of them from the American Red Cross for after hours volunteer work as a case worker. Nominated numerous times as Outstanding Senior Sailor. From one command to another, year after year, received continuous strong recommendations for retention, advancement and all programs leading to a commission.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:          USN                                 880529 – 920205           HON
 860115 – 880528           HON     
801104 – 860114           HON
                            USNR                       771201 – 801103          HON

 Period of Service Under Review :
Date of Enlistment: 920206                        Date of Discharge: 951130

 Length of Service (years, months, days):

         Active:                   18 00 00
         Inactive:                 None

 Age at Entry: 38                                   Years Contracted: 6

 Education Level: 11 GED                    AFQT: 52

 NEC: AK-2823                                        Highest Rate: AKC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.92 (5)             Behavior: 3.40 (5)                OTA: 3.88

 Military Decorations: NAM

 Unit/Campaign/Service Awards: MUC, OSR (5), NDSM, GCA (4), CGMUC

 Nonjudicial Punishment(s): None  Court(s)-Martial: None

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge:

Discharged GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT; authority: NAVMILPERSMAN, Article 3630600.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

 880529:  Reenlisted for 3 years onboard USS ENTERPRISE.

910719:  Substance Abuse Medical Officer Screen: Drinking History: Usually drinks 3-4 bottles of wine or 24 beers a day. In last 2 years has been having problems covering alcohol use – drank 14 beers this A.M. to relieve shakes and anxiety. Last binge – last weekend, significant tolerance, withdrawal – has shakes, anxious, depressed, frequent blackouts, drinks daily at every opportunity, mother and father alcoholics. Family problems with wife, one arrest.
         Impression: Alcohol Dependence.
         Recommendation: Detox Naples – medivac on 20 Jul 91 with attendant then immediate transfer to ARS.

910721:  Naval Hospital Naples: Diagnosis – Chronic Alcoholism.
 History: The patient is a 38 year old Caucasian male who was medevaced from Sigonella for Detoxification here in Naples prior to admission to the Alcohol Rehabilitation Service in Rota, Spain. Patient admits that alcohol has taken over his life, he has had no driving under the influence convictions, however he has some disorderly conduct, his wife has refused to take him back so that now he lives in the barracks and he needs help. He has been drinking heavily since September 1988, drinks daily, he uses as an eye opener, he drinks about 1 case of beer and four bottles of wine per day. He has significant tolerance to alcohol and usually developed shakes and anxiety if he does not drink alcohol. This however has not affected his work, he has been drinking for 14 years a minimum of 12 beers per night and usually a case on weekends. He had had no seizure episodes in the past, however he had a history of blackout spells. He has pain in the upper abdomen for about one year, which is usually aggravated by jogging. He claims that he had melena in the past and also eight days ago, although latest stool exam revealed negative for occult blood.
          Hospital Course: The patient was given 100mg Thiamine, 1mg of Folate, and multivitamins IV for three days. He was started initially with Vallum 10mg p.o. and subsequently changed over to Librium at 30mg q6h. He was also started on Inderal 40mg b.l.d. on account of the elevated blood pressure. His hospital course was essentially unremarkable. He had fairly mild withdrawal symptoms consisting of anxiety and nervousness with mild elevation of blood pressure controlled by Librium 30mg four times a day and gradual tapering to just prior to medevac. Condition on discharge is satisfactory.
         Disposition: MedEvac to Rota, Spain, for further therapy.

910731:  Admitted to the U. S. Naval Hospital Rota, SP for Level III alcohol treatment. Admittance diagnosis: Alcoholism.

910920:  Completed Level III Alcohol Abuse Treatment, returned to full duty. Medical record entry: Naval Hospital, Rota, Spain: 38 year old married Hispanic male, with approximately 14 years of service, was admitted to the Alcohol Rehabilitation Department, NAVHOSP Rota with a diagnosis of alcoholism. He underwent a period of appropriate observation, evaluation and treatment.
         Patient reported that he self referred for Level III treatment following an alcohol-related incident on 4 July 1991. At that time he was very drunk and was involved in a squabble with a neighbor lady. According to the security report, the patient made improper sexual advances to the neighbor, but he denied this during the intake. He was charged with unlawful entry, however, charge was referred to OIC for administrative action. The patient said that he was afraid CAAC would refer him only to LEVEL II and he knew he needed LEVEL III treatment as he could not stop drinking. He has had no previous alcohol-related incidents, except as a juvenile when he was caught stealing wine and turned over to his parents.
         Recommendations: Anti-anxiety medications, regular interviews between patient and supervisor are necessary and helpful, weekly DAPA follow-up to assess the patient’s progress, if drinking recurs - the member should be dealt with in accordance with the guidelines set forth in OPNAVINST 5350.4B, medical follow-up including Liver Function Tests to reevaluate for antabuse therapy, attend a minimum of 3 Alcoholics Anonymous meetings per week for one year, regular attendance of aftercare meetings for one year, and random urinalysis screening – a minimum of one sample per month.
         Prognosis: Good

920206:  Reenlisted for 6 years at NAVMASSO MED DET Sigonella.

 920908:  Joined NAS Key West, FL

940927:  TAD to Joint Task Force 160, Guantanamo Bay, Cuba until 94DEC26.

950314:  Medically screened for overseas assignment.

950605:  Joined Naval Station Roosevelt Roads, PR

951001:  NAVHOSP Roosevelt Roads: 42 year old active duty USN Chief Petty Officer who presented to hospital emergency room with blood alcohol level .44 g/DL. Was admitted and treated for alcohol intoxication and treated for alcoholic ketoacidosis. After he became more stable, was transferred from ICU to MSPU.
         Disposition: Released 951005, full duty and continued treatment as outpatient.

951009:  NAVHOSP Roosevelt Roads: Alcohol intoxication. Admitted for alcohol intoxication. Observed overnight and administrated IV with 100mg Thiamine and respiration monitored with pulse and frequent vital signs obtained. Patient is stable for discharge.
         Disposition: Released 951010: Continue treatment as outpatient (Alcohol rehab).

951011:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of alcohol abuse rehabilitation failure as evidenced by your two alcohol abuse incidents on 1 Oct 95 and 9 Oct 95. Receipt acknowledged.
951012:          Applicant advised of his 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. Applicant did not object to this separation. Receipt acknowledged.

951017:  Head, Mental Health Department, Capt. C_ F_, MC: The patient’s records were reviewed and the patient was interviewed. The patient had been admitted times 2 with a blood alcohol level during his admission which as 0.435 and the blood alcohol level during his second hospitalization of 0.325. The patient had attended alcohol rehabilitation Level III in the past. The patient now states “I don’t want to ever return to alcohol rehabilitation Level III ….I want out of the Navy.”
         Diagnosis: Alcohol Dependence, continuous
         Recommendation: This patient should be administratively separated as soon as possible. If this patient is not administratively separated as soon as possible, as an alcohol rehabilitation failure, one cannot expect his behavior to improve. This patient will continue to consume alcohol. The patient has the ability to conduct himself according to the standards of the law both as a military person and as a civilian.

951018:  Commanding officer recommended discharge with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure under MILPERSMAN 3630550 as evidenced by member’s two alcohol abuse incidents on 1 Oct and 9 Oct 1995. Commanding officer’s verbatim comments: “Chief (Applicant) completed Level III in 1991 and Level III aftercare in 1992. Since reporting to this command, AKC(SW) (Applicant) has had severe marital problems and binge drinking episodes. Although his department and division officer, as well as the command senior chief and DAPA have worked closely to assist him in resolving his problems, he has not actively sought help. His marital problems are contributing factors to his recent alcohol relapse. His wife has left him and has returned to the States. AKC(SW) (Applicant) now desires to be discharged from the Navy as soon as possible to return to the States in an attempt to reconcile with his wife. Chief (Applicant)’s behavior and lack of leadership is unacceptable. His continued disregard for Navy rules, regulations and policies cannot be tolerated. He is a Level III failure and currently exhibits no characteristics for continued service. I recommend that he be separated from the naval service as soon as possible with a discharge as warranted by his service record. Additionally, he should be offered alcohol treatment through the Veterans Administration.”

951101:  BUPERS directed the applicant's discharge, with characterization of service based on member’s performance evals, by reason of misconduct, using MILPERSMAN 3630600 as the authority and assign separation code of HPD.

951130:  DD Form 214 indicates, as directed by BUPERS, discharged GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT; authority: NAVMILPERSMAN, Article 3630600.

RECORDER’S NOTES:

 1 The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

PART IV - EXTRACT OF PERTINENT REGULATION/LAW


 A . The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22
Jul 94 until 2 Oct 96), Article 3630550, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE states:
1. A member may be separated by reason of alcohol abuse rehabilitation failure when he or she:

a. Demonstrates an inability or refusal to participate in, cooperate in, or successfully complete a Level II or III rehabilitation treatment program;

b. Has an alcohol incident or drug-related incident any time in his or her career following completion of Level II or III rehabilitation treatment and there is no potential for further useful service:

(1) An alcohol incident is defined as conduct or behavior, caused by the ingestion of alcohol, which results in discreditable involvement with civil and/or military authorities. Events requiring medical care or involving a suspicious public or domestic disturbance must be carefully evaluated to determine if alcohol was a contributing factor; if so, it is an alcohol incident; and

(2) A drug-related incident is defined as any incident in which drug abuse is a factor. This includes the use of controlled substances or illegal drugs. Voluntary self-referral, confirmed wrongful or improper use or possession of drugs or drug paraphernalia, or drug trafficking constitutes an incident. Events requiring medical care or involving a suspicious public or domestic disturbance must be carefully evaluated to determine if drugs were an underlying factor; if so, it is a drug incident. Proper use of authorized and documented prescription drugs is not reported as an incident.

c. Fails to follow a directed Level II or III aftercare program.

d. Returns to alcohol abuse following Level II or III rehabilitation treatment and there is
no potential for further useful service: alcohol abuse is defined as the abuse of alcohol to an extent that it has an adverse effect on the user's health, behavior, family, community, the Navy, or leads to unacceptable behavior as evidenced by one or more alcohol incident(s).

2. If the member qualifies for processing for any other reason in this manual, dual or multiple processing is required.

3. Characterization. Type warranted by service record (Honorable or General) or Entry Level Separation as specified in Article 3610300.

4. Procedures
a. The Notification procedure (Article 3640200) shall be used.
b. Officers exercising special court-martial convening authority are delegated authority (see Article 3610220) to separate members with Honorable, General, or Entry Level discharges provided the member does not object to the separation. In cases where member objects to separation, Chief of Naval Personnel (Pers-83) is Separation Authority.

c. Forward processed case by letter of transmittal to Pers-83. Ensure member's full name, rate, and SSN have been indicated on each page of the case. In those cases where the commanding officer effects the separation, indicate date and characterization of separation awarded. Refer to Article 3640200. 11 for message submission option in those cases where member waives an Administrative Board, the commanding officer does not have authority to effect separation, or member objects to separation.
B . The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 02Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT , states:

1. A member may be separated for misconduct by reason of one or more of the following circumstances:

a. Misconduct Due to Minor Disciplinary Infractions. A series of at least three but not more than eight minor violations (e.g. specifications) of the Uniform Code of Military Justice (UCMJ) (none that could result in a punitive discharge - see Manual for Courts-Martial, Appendix 12, and not drug related) documented in the service record, within the current enlistment, which have been disciplined by not more than two punishments under the UCMJ. The member must have violated counseling (Article 3610250.5) prior to initiating processing. If separation of a member in entry level status is warranted solely by reason of minor violations of the UCMJ, and the member's misconduct does not meet the eligibility requirements for any other misconduct, the processing should be under Entry Level Performance and Conduct (Article 3630200).

b. Misconduct Due to a Pattern of Misconduct

(1) A pattern of misconduct is defined as discreditable involvement with civil and military authorities. The member must have violated counseling (Article 3610250.5) prior to initiating processing. Such a pattern may include both minor and serious infractions as evidenced by:

 (a) Three or more civilian convictions within the current enlistment.

(b) Three or more punishments under the UCMJ within the current enlistment.

(c) Any combination of three civilian convictions and punishment(s) under the UCMJ within the current enlistment.

(d) Three or more periods of unauthorized absence of more than 3 days duration each within the current enlistment.

(e) Nine or more violations (e.g., specifications) of the UCMJ within the current enlistment which have been disciplined by punishment under the UCMJ.

(2) A pattern of misconduct is defined as well by discreditable management of one's personal and financial affairs as evidenced by:

(a) A set pattern of failure to pay just debts. (Include financial statement prepared as specified in Article 6210140.14 when case is forwarded.)

(b) A set pattern of failure to contribute adequate support to dependents or failure to follow orders, decrees, or judgments of a civil court concerning the support of dependents. Include copies of court order(s), judgments, etc.

c. Misconduct Due to Commission of a Serious Offense (processing not mandatory). An individual may be processed for administrative separation when a punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense. Note that:

(1) If the offense is evidenced by a general or special court-martial conviction--the findings of which have been approved by the Convening Authority--the findings of the court-martial as they relate to the administrative discharge process (basis and reason) are binding on the Administrative Board (see Article 3610260.7a).

(2) If the offense is evidenced solely by a court-martial conviction and the court-martial Convening Authority has remitted or suspended a punitive discharge, forward the case to the same Convening Authority for endorsement according to Article 3610260.7b.

d. Misconduct Due to Commission of a Serious Offense (processing mandatory)

(1) An individual must be processed for administrative separation when the commanding officer believes by a preponderance of the evidence that the individual committed extremely serious misconduct that either resulted in, or had the potential to result in death, or serious bodily injury, such as but not limited to: homicide, arson, armed robbery, etc.

(2) Sexual Perversion. An individual must be processed for administrative separation when an incident involves sexual behavior that deviates from socially acceptable standards of morality and decency. Such behavior may violate military or civilian law and includes, but is not limited to:

(a) lewd and lascivious acts;

(b) sodomy (forcible heterosexual or child molestation); consensual and forcible homosexual acts with of-age individual shall be processed under Article 3630400);

(c) indecent assault;

(d) indecent acts; and

(e) indecent exposure.

Note that if circumstances involve an incestuous relationship, commanding officers shall notify Chief of Naval Personnel (CHNAVPERS) (Pers-661/83) immediately upon discovery. Per OPNAVINST 1752.2, Pers-661 will review the case for referral to the Family Advocacy Program; if member is not accepted, Pers-83 will direct processing for separation. Note that acceptance into family advocacy programs run by Family Service Centers at local commands does not constitute formal acceptance into the Navy's Family Advocacy Program.

(3) Sexual Harassment. An individual must be processed for administrative separation following punitive actions if appropriate, on the first substantiated incident of sexual harassment involving any of the following circumstances:

(a) threats or attempts to influence another's career or job for sexual favors;

(b) rewards in exchange for sexual favors; or

(c) physical contact of a sexual nature which, if charged as a violation of the UCMJ, could result in a punitive discharge.

Note that an incident is substantiated if there has been a nonjudicial punishment or court-martial conviction, or the commanding officer is convinced based on the preponderance of the evidence that sexual harassment has occurred. All forms of sexual harassment not mentioned above must still be handled administratively (i.e.; NAVPERS 1070/613, Administrative Remarks (Page 13) counseling, letters of instruction, nonpunitive letters, remarks in evaluations, etc.).

e. Misconduct Due to Civilian Conviction (processing not mandatory). An individual may be processed for administrative separation based on a conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, provided the offense, or closely related offense could warrant a punitive discharge (see Manual for Courts-Martial, Appendix 12), or the sentence includes confinement of 6 months or more without regard to suspension or probation.

f. Misconduct Due to Civilian Conviction (processing mandatory). An individual must be processed for administrative separation based on a conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, which involved an offense that either resulted in, or had the potential to result in death, or serious bodily injury, such as but not limited to: homicide, arson, armed robbery, etc., or is a sexual perversion as described in subparagraphs 1d(2)(a) - (e).

2. Under this article, counseling and warning as outlined in Article 3610260.5 is only required for members being processed for misconduct due to pattern of misconduct or misconduct due to minor disciplinary infractions. The latest offense and counseling and warning must have occurred while assigned to the parent command. Separation activities defined in Article 3640476, and other commands to which temporary duty is authorized by CHNAVPERS, are exempt from this requirement.

3. Characterization. Normally Other Than Honorable, but characterization as General may be assigned when warranted. For respondents who have completed entry level status, characterization of service as Honorable is not authorized unless the respondent's record is otherwise so meritorious that any other characterization would be clearly inappropriate. When characterization of service as Other Than Honorable is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation.

4. Reduction in Rate. When a servicemember serving in pay grade E-4 or above is administratively separated with an Other Than Honorable characterization of service, the member shall be administratively reduced to pay grade E-3, such reduction to become effective upon separation.

5. Procedures

a. The Administrative Board procedure (Article 3640200) shall be used in processing all reasons, except when processing for misconduct due to minor disciplinary infractions, in which case Notification procedure (Article 3640200) may be used.

b. Separation processing for misconduct due to civil conviction may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so. Execution of an approved separation should be withheld pending outcome of the appeal or until the time for appeal has passed. The member may be separated prior to final action on appeal upon his or her request or upon direction of the Secretary of the Navy (SECNAV).

c. Members confined in a foreign penal institution may be processed for separation, but may not be discharged or separated from the service until the completion of imprisonment and return to the United States. In unusual cases, (i.e., life sentence without possibility of parole) such discharges or separations may be authorized by SECNAV by Reason of Best Interest of the Service (see Article 3630900). SECNAVINST 5820.4 refers.

d. Members must be dual or multiple processed where appropriate, (i.e., members processed for misconduct due to civil conviction must also be processed (dual) for misconduct due to commission of a serious offense if the offense for which convicted could warrant a punitive discharge). Exceptions:

(1) misconduct involving only preservice, prior service, or current service homosexual conduct shall be processed only under Article 3530400;

(2) misconduct involving only drug abuse (civil or military) shall be processed only under Article 3630620;

(3) misconduct involving only violation of UCMJ Article 83 shall be processed only under Article 3630100.

e. Members may be processed for separation by reason of misconduct for offenses which occur preservice or in a prior enlistment, provided the misconduct was unknown to the Navy at the time of enlistment or reenlistment and processing for fraudulent enlistment is inappropriate. Under these unusual circumstances, Notification procedures (see Article 3640200) shall be used as the least favorable characterization of service possible for offenses which occur prior to entry into active duty or in prior enlistment is General.

f. Officers exercising special court-martial convening authority are delegated authority (see Article 3610220) to separate members only if an Administrative Board recommends separation with a General or Honorable discharge, the member does not object to the discharge, and that characterization is consistent with guidance in Article 3610300. In cases where member objects to separation, CHNAVPERS (Pers-83) is Separation Authority. Regardless of an Administrative Board's recommendation, CHNAVPERS is Separation Authority for members being separated by reason of misconduct due to commission of a serious offense as evidenced by sexual perversion or sexual harassment.

g. Forward processed case by letter of transmittal to Pers-83. Ensure member's full name, rate, and SSN have been indicated on each page of the case. In those cases where the commanding officer effects the separation, indicate date and characterization of separation awarded. Refer to Article 3640200.11 for message submission option in those cases where member waives an Administrative Board, the commanding officer does not have authority to effect separation, or member objects to separation.

 C . Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 2 Oct 96), Article 3610300, TYPES OF CHARACTERIZATION OF SERVICE, DESCRIPTIONS OF SEPARATION AND GUIDANCE FOR ASSIGNMENT , states:

1. Types of Characterization of Service or Descriptions of Separation

a. For administrative separations the following characterizations of service are authorized subject to the limitations specified in Articles 3610200 and 3610260 and are described with each reason for processing:

(1) Honorable

(2) General (Under Honorable Conditions)

(3) Other Than Honorable Conditions

b. For separations adjudged by courts-martial the following characterizations of discharge are used and shall not be used for administrative separations:

(1) Bad Conduct Discharge. Result of an approved sentence of a general or special courts-martial.

(2) Dishonorable Discharge. Result of an approved sentence of a General Court-Martial.

c. The following uncharacterized descriptions of separation are authorized subject to the limitations specified in Articles 3610200 and 3610260:

(1) Entry Level Separation (see subparagraph 5a of this article);

(2) Void ( see subparagraph 5b of this article); and

(3) Order of release from the custody and control of the Armed Forces.

2. General Considerations on Characterization of Service:

a. Characterization of service at separation shall be based upon the quality of the member's service, including the reason for separation, subject to the limitations set forth under specific reasons for separation. The quality of service shall be determined in according to standards of acceptable personal conduct and performance of duty for naval personnel. These standards are found in the Uniform Code of Military Justice (UCMJ), directives and regulations issued by the Department of Defense and the Department of the Navy, the Enlisted Performance Evaluation System, and the timehonored customs and traditions of the naval service.

b. The quality of service of a member on active duty or active duty for training is affected adversely by conduct that is of a nature to bring discredit on the naval service or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction. Characterization may be based on conduct in the civilian community where that conduct has adversely affected the respondent's service; once the Government has introduced evidence that such conduct did adversely affect the respondent's service, the burden is on the respondent to demonstrate that such conduct did not in fact adversely affect his or her naval service.

c. The reason for separation, and the specific circumstances that form the basis for the separation, as well as the military record, shall be considered on the issue of characterization. Generally, characterization will be based upon the member's performance of duty and conduct throughout the period of their enlistment. However, there are circumstances in which the conduct or performance of duty reflected by a single incident may provide the basis of characterization, such as single acts of misconduct or heroism. Due consideration shall be given to the member's age, length of service, grade, aptitude, physical and mental condition, and the standards of acceptable conduct and performance of duty.

3. Guidelines for Assignment of Characterization

a. Honorable. The Honorable characterization is appropriate when the quality of the member's service has for the most part met acceptable standards of conduct and performance of duty for naval personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. The Honorable characterization is marked by proper personal and military behavior with proficient and industrious performance of duty having due regard to the rate held and the capability of the member concerned.

(1) Court-Martial. During current enlistment, in order to receive a characterization of service as Honorable, the member must have been awarded in his or her performance evaluations a final trait average in performance and conduct of not less than 2.8, and a final trait average of not less than 3.0 in personal behavior; and

(2) A member who would be eligible for a characterization of service as General may receive an Honorable discharge if they have, during a current enlistment been awarded a Medal of Honor, Navy Cross, Distinguished Service Medal, Silver Star Medal, Legion of Merit, Distinguished Flying Cross, Navy and Marine Corps Medal, Bronze Star Medal, Meritorious Service Medal, Air Medal, Joint Service Commendation Medal, Navy Commendation Medal, Navy Achievement Medal, Combat Action Ribbon, Gold Lifesaving Medal, Silver Lifesaving Medal, or an award corresponding to any of these personal decorations awarded by one of the Armed Forces. The above awards constitute elements of a member's record which should be considered meritorious.

b. General ( Under Honorable Conditions). The General characterization is appropriate when service has been honest and faithful but significant negative aspects of the member's conduct or performance of duty outweigh positive aspects of the member's service record. A characterization of service as General is always Under Honorable Conditions. A member would be eligible for a characterization of service as General if, during current enlistment the member has been awarded in his or her enlisted performance evaluations a final trait average in performance and conduct that falls below 2.8, or a final trait average in personal behavior that falls below 3.0.

c. Under Other Than Honorable Conditions. A characterization of service as Other Than Honorable is always Under Other Than Honorable Conditions. A characterization of service as Other Than Honorable is appropriate and may be authorized in the following circumstances, and member has had the opportunity to elect an Administrative Board: (Administrative Board election not applicable if the member is requesting an Other Than Honorable discharge in lieu of trial by court-martial (3630650)).

(1) When the reason for separation is under the mandatory reasons for processing (see Article 3610260.6); or

(2) When the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected from members of the naval service. Examples of such acts or omissions include those punishable by a punitive discharge (see Manual for Courts-Martial, Appendix 12), unauthorized absence (UA) in excess of 30 consecutive days, drug abuse, drug trafficking, the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior-subordinate relationships, and acts or omissions that endanger the security of the United States, the health and welfare of other members of the naval service, or the health and safety of other persons. Commanding officers must provide specific details of offenses in those cases which may warrant a more favorable characterization than that normally authorized.

4. Limitations on Characterization of Service

a. Except as otherwise provided in this article, characterization will be determined solely by the member's service record during the current enlistment or period of service to which the separation pertains, plus any extensions thereof prescribed by law or regulation or effected with the consent of the member.

(1) Activities from prior enlistments or periods of obligated service shall not be considered on the issue of characterization. To the extent that such matters are considered on the issue of retention or separation, the report of an Administrative Board shall reflect that such information was not considered on the issue of characterization; and

(2) Preservice activities may not be considered on the issue of characterization except that in a separation proceeding for the Reason of Defective Enlistments and Inductions due to Fraudulent Entry into the Naval Service (3630100).

b. When members are processed for separation based solely upon the results of a special or general court-martial not imposing a punitive discharge and an Other Than Honorable characterization is warranted, such characterization must be forwarded to the Secretary of the Navy (SECNAV) for approval. If a special or general court-martial awards a punitive discharge, but the punitive discharges suspended, Chief of Naval Personnel (CHNAVPERS) is approving authority.

c. Conduct in the civilian community of a member of the Naval Reserve who is not on active duty or active duty for training may form the basis for characterization as Other Than Honorable only if such conduct directly affects the performance of the member’s military duties; e.g., conduct that results in incarceration, prohibiting a member from participation in drills or being mobilized, etc. Such conduct may form the basis of characterization as General only if such conduct has an adverse impact on the overall effectiveness of the naval service including military morale and efficiency; e.g., discreditable involvement with civilian authorities while not on active duty for training and while wearing the naval uniform without authorization.

d. Drug abuse disclosed through the Voluntary Self-Referral Program may not be considered on the issue of characterization of service as Other Than Honorable except as provided in OPNAVINST 5350.4.

e. Urinalysis test (fitness for duty, and certain service-directed tests) results may not be considered on the issue of characterization of service as Other Than Honorable except as provided in OPNAVINST 5350.4.

5. Uncharacterized Separations. A separation which, due to the short duration of service, is uncharacterized.

a. Entry Level Separation

(1) A separation initiated (i.e., date member is notified of administrative separation processing) while a member is in entry level status (see Article 3610200.1j) will be described as Entry Level Separation except in the following circumstances:

(a) when characterization as Other Than Honorable is authorized under the reasons for separation and is warranted by the circumstances of the case; or

(b) when characterization of service as Honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of naval duty where separation is for the reason of: selected changes in service obligation (Article 3620100), convenience of the government (Article 3620200), disability (Article 3620270), and SECNAV approves such characterization on a case-by-case basis.

(2) With respect to administrative matters outside this Manual that require a characterization as Honorable or General, an Entry Level Separation shall be treated as the required characterization. When a member of the Naval Reserve is separated from the Delayed Entry Program with an Entry Level Separation, such separation is “under Honorable conditions”.

b. Void Enlistment or Induction

(1) An enlistment is Void in the following circumstances:

(a) if it was effected without the voluntary consent of a person who has the capacity to understand the significance of enlisting in the Navy including enlistment of a person who is intoxicated or insane at the time of enlistment, or enlistment of a person who was coerced into enlisting by being presented with the option of either enlisting or being subjected to a sentence to confinement by a court of competent jurisdiction.;

(b) if a member test positive for drugs or alcohol on his or her accession into the Navy and is diagnosed as dependent;

(c) if the person is under 17 years of age; or

(d) if the person is a deserter from another military service.

(2) A member whose enlistment or induction is Void shall not receive a discharge certificate, characterization of service at separation, or an Entry Level Separation. The separation shall be described as an order of release from custody or control of the Armed Forces.

(3) Although an enlistment may be Void at its inception, a constructive enlistment arises in the case of a person serving with the Navy who:

(a) submitted voluntarily to naval authority and was not insane, intoxicated, or under 17 years of age at the time;

(b) received military pay or allowances; and

(c) performed military duties.

(4) If a constructive enlistment arises from a Void enlistment within the same term of service, characterization of service or description of separation shall be according to paragraph 3 or subparagraph 5a of this article as appropriate. However, if the enlistment was Void by reason of desertion from another service, the member shall be separated by an order of release from custody and control of the Armed Forces, regardless of any subsequent constructive enlistment, unless SECNAV determines that retention is appropriate.
(5) The occurrence of such a constructive enlistment does not preclude the Navy, in an appropriate case, from either retaining or separating the member on the basis of the circumstances that occasioned the original Void enlistment or upon any other basis for separation provided in this Manual.
D . Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

 “9.2 Propriety of the Discharge
a. A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that:

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b. When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c. The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d. The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.”
E . SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, paragraph 9.3, Equity of the Discharge , states, in part, that a discharge shall be deemed to be equitable unless in the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:

1. Quality of service, as evidenced by factors such as:

a. service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

b. awards and decorations;

c. letters of commendation or reprimand;

d. combat service;

e. wounds received in action;

f. records of promotions and demotions;

g. level of responsibility at which the applicant served;

h. other acts of merit that may not have resulted in formal recognitions through an award or commendation;

i. length of service during the service period that is the subject of the discharge review;

j. prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

k. convictions by court-martial;

l. records of nonjudicial punishment;

m. convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

n. records of periods of unauthorized absence;

o. records relating to a discharge in lieu of court-martial.

2. Capability to serve, as evidenced by factors such as:

a. Total capabilities. This includes an evaluation of matters such as age, educational level, and aptitude scores. Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

b. Family and personal problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

c. Arbitrary or capricious actions. This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

d. Discrimination. This includes unauthorized acts as documented by records or other evidence.

PART V - RATIONALE FOR DECISION
Discussion
         After a thorough review of the records, supporting documents 1 , facts, and circumstances unique to this case, the Board determined that the characterization of the applicant’s service is inequitable and the reason for separation is improper. The discharge shall be changed to : HONORABLE/ALCOHOL REHABILITATION FAILURE; authority: NAVMILPERSMAN, Article 3630550 (A, Part IV).
         The applicant was discharged on 951130 with a characterization of General (Under Honorable Conditions) due to misconduct (B, Part IV). On 910719, the applicant was referred to medical for substance abuse screening. He was diagnosed as ETOH dependent, and recommended for transfer to Naval Hospital Naples, IT. for detoxification. On 910720 he was transferred to Naval Hospital Naples for detoxification. On 910731, he was MedEvac’d to Naval Hospital, Rota, SP. for Level III Alcohol Rehabilitation Treatment. On 910920, he completed Level III treatment and was returned to full duty. On 920206, the applicant reenlisted for 6 years. On 951001, the applicant was admitted to the Naval Hospital Roosevelt Roads, emergency room with a blood alcohol level of .44, he was stabilized and transferred from the ICU to MSPU. He was released on 951005 to full duty. On 951009, he was again admitted to Naval Hospital Roosevelt Roads for alcohol intoxication, he was released the following day. On 951011, t he applicant was advised of proposed separation and was afforded the opportunity to exercise all of the rights of law, regulation, and custom to which he was entitled. He chose not to consult with counsel and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation. The Commanding Officer initiated administrative separation proceedings by recommending a discharge as type warranted by service record by reason of alcohol abuse rehabilitation failure as evidenced by his two alcohol abuse incidents on 1 Oct 95 and 9 Oct 95. BUPERS directed discharge with characterization as warranted by service record by reason of misconduct with a Separation Program Designator (SPN) corresponding to alcohol abuse rehabilitation failure.

          Upon review, the Board determined that the characterization for discharge was improper and inequitable (C - E, Part IV). Although the applicant’s CO recommended a discharge with a characterization of general in the body of his message, in his comments he specified a characterization of service as type warranted by service record. BUPERS authorized and directed the applicant’s discharge with a characterization as type warranted by service record. The applicant during this enlistment received no NJP’s and was awarded on his performance evaluation a final trait average in performance and conduct of 3.92 and a final trait average of 3.40 in personal behavior which were sufficiently meritorious to warrant a honorable characterization (C, Part IV). Based on the applicant’s evaluation reports, the CO’s recommendation and BUPERS direction, the applicant should have received a honorable discharge. Full characterization relief is warranted.
The NDRB noted administrative errors in the BUPERS separation authorization message. The separation authority and narrative reason for discharge were incorrectly listed. The applicant was notified of the intended recommendation for discharge due to alcohol rehabilitation failure. He had no misconduct listed in his record and was not processed for misconduct. BUPERS correctly listed in block 26 of the DD-214, the SPN code equating to alcohol rehabilitation failure. Due to this error, the Board determined that the correct reason for separation was Alcohol Rehabilitation Failure and the correct separation authority is MILPERSMAN, Article 3630550.
        The issues raised by the applicant were not addressed. They were not required to be addressed; because, a finding in the applicant’s favor on any or all of them would not grant any greater relief. However, those issues not addressed are listed in this document.
Recorder’s NoteS:

 1 In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of applicant’s DD Form 214 (4)
Copy of applicant’s Honorable Certificate (DD 256N) issued 5 February 1992
Copy of applicant’s Honorable Certificate (DD 256N) issued 28 May 1988
Copy of applicant’s Honorable Certificate issued 14 January 1986
Copy of applicant’s Honorable Certificate issued 3 November 1980
Copy of NCPB’s ltr dated Aug 27, 1997 to House Representative Reyes
concerning applicant’s petition
Copy of House Representative Reyes’ ltr dated Aug 11, 1997 to NDRB
concerning applicant’s petition
Copy of Navy Achievement Medal Certificate of 3 Feb 89
Copy of Enlisted Performance Evaluation Report (17 reports) for periods of
service from 830101 to 950605

PART VI - INFORMATION FOR THE APPLICANT
Decision

The NDRB discerned an inequity in the characterization of and an impropriety in the reason for the applicant’s separation. The Board’s vote was unanimous that the character of and reason for the discharge shall change. The discharge shall be changed to: HONORABLE/ALCOHOL REHABILITATION FAILURE; authority: NAVMILPERSMAN, Article 3630550.
         The Board noted administrative errors on the original DD-214. Block 25 should read: MILPERSMAN 3630550, Block 28 should read: ALCOHOL REHABILITATION FAILURE. The DD-214 should be reissued or corrected as appropriate.
If you believe that the decision in your case is unclear, not responsive to the issues which you raised, or does not otherwise comport with the decisional documents 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809.

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                   Building 36 Washington Navy Yard
                   901 M Street, SE
                  Washington, D.C. 20374-5023.

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