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NAVY | DRB | 1997_Navy | ND97-01395
Original file (ND97-01395.rtf) Auto-classification: Denied


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

ex SR, USNR
Docket No. ND97-01395


 Applicant’s Request
The application for discharge review, received 970917, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary discharge review. The applicant did not list any representative on the DD-293.


Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980914. The NDRB determined that the discharge equitably reflects the quality of service rendered. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.
THIS THE CORRECT SHELL FOR COSO 831105 - 840424 ONLY. THE FINDING FOR MISCONDUCT IS EFFECTIVE FOR 831105- 840424 ONLY.
SPN CODE HKQ THE SPN CODE IS EFFECTIVE 821001 - 860910.
A general discharge is written “UNDER HONORABLE CONDITIONS (GENERAL)”

PART I - APPLICANT’S ISSUES (verbatim)


 1. The majority of my problems were indirectly related to a drinking problem. I’ve been dry for 4 years now and wish to become a merchant marine.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active:  None
         Inactive:        None

 Period of Service Under Review :
Date of Enlistment: 820514                        Date of Discharge: 831206

 Length of Service (years, months, days):

         Active: 01 05 26
         Inactive: 00 00 28

 Age at Entry: 19                                   Years Contracted: 6

 Education Level: 12                                 AFQT: 36

 NEC: None                                          Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.30 (2)    Behavior: 3.20 (2)                OTA: 3.17

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Nonjudicial Punishment(s): 3              Court(s)-Martial: None

 Days of Unauthorized Absence: 36

 Character, Narrative Reason, and Authority of Discharge:
UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

 820611:  Applicant ordered to active duty for 36 months under Active Marine Program.

820928:  Joined USS HALEAKALA (AE-25)

821008:          Acknowledged receiving training on Drug and Alcohol Program.

830217:          Self-referral for screening regarding alcoholism; evaluated by Medical Officer at Alcohol Rehabilitation Service (ARS) Oakland. Applicant reported a history of drinking since age 17, experienced loss of control, withdrawal symptoms when not drinking, financial problems due to drinking, fights, 2 DWI’s and poor interpersonal relations. He stated a tolerance of approximately 3 six packs of beer in a 24 hour period. He is amenable to treatment and wishes treatment. Recommendations:
1. Admit to ARS on 830308 at 0800 hours.
2. Antabuse therapy while awaiting admission.
3. Attend at least three Alcoholics Anonymous meetings per week.
                           
830218:  Substance Abuse Report: self-referral for alcohol. CAAC determined that applicant is dependent, and amenable to, and eligible for, counseling/education/rehabilitation. Commanding Officer recommended retain and alcohol residential treatment. Comments: No previous NJP. SA R_ is an outstanding worker, his prognosis for further naval service is considered good. He has been referred to ARS (NRMC OAKKNOLL) on 17 Feb 83 for initial screening for alcohol dependency.

830315:  Joined NAVREGMEDCEN OAKLAND, CA (Patient – ARS for 6 week inpatient treatment).

830323:  Applicant discharged from treatment (prior to completion).

830325:  Alcohol Rehabilitation Service Treatment Summary: Applicant admitted to alcohol consumption beginning at age 13, blackouts, craving for alcohol, fights while drinking, periods of remorse and self-reproach after drinking and getting drunk in spite of making a firm decision to have “just a few” drinks. Applicant admits to ingesting 5 tabs of LSD (pre-service). Patient admitted that he was alcoholic but rationalized, denied and evaded other problems. He was withdrawn and wasted group time in group therapy and discussions. Patient was administered Antabuse daily, and continued use was prescribed as part of After Care Plan. Diagnosis: Alcohol dependence, EPTE. Polysubstance abuse, EPTE.

830510:  NJP for violation of UCMJ, Article 86: Absent himself from his unit, 0700, 830331 to 1045, 830429 (29 days/surrendered), and Article 87: Missing ship’s movement.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
830510:  Retention Warning: Applicant advised of deficiency in conduct evidenced by unauthorized absence. Corrective actions identified and sources of assistance included. Advised that further deficiencies may result in disciplinary action and administrative separation. All deficiencies during current enlistment will be considered. Subsequent violations of the UCMJ or conduct resulting in civilian conviction could result in separation under other than honorable conditions. Receipt acknowledged.

830810:  NJP for violation of UCMJ, Article 86: Unauthorized absence for 9 hours on 830729, and Article 108: Mutilating his ID card intentionally on 830729.
         Award: 3 days bread and water. No indication of appeal in the record.
831123:  NJP for violation of UCMJ, Article 86: Unauthorized absence, 0700, 831004 to 1325, 831011 (7 days/surrendered), and Article 87: Missing ship’s movement on 831011.
         Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
831123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and the commission of a serious offense.
831123:          Applicant advised of his rights and, having chosen not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
831123:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s verbatim comments: Page 13 counselling reqmt reqd by ref a and in format of Encl (2) to ref b was executed on 10May83 as a result of U/A 31Mar-29Apr 83. SNM violated counselling on 29Jul83 and 04Oct83 by committing offenses outlined para 5 above. SNM displays no potential for continued useful service and it is considered that further acts of misconduct are likely to
occur in his case. Accordingly, SNM is recommended for administrative discharge from the naval service by reason of misconduct as evidenced by a pattern of misconduct and commission of a serious offense. SNM is eligible for an other than honorable discharge and an other than honorable discharge is recommended in this case.
831129:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

831206:  Discharged UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense; authority Naval Military Personnel Manual, 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 . Navy Military Personnel Manual, (NAVPERS 15560, Change 10/83, effective 05 Nov 83 until 04 Nov 84), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT, states:

1. Basis

 a. Reasons. A member may be separated for misconduct when it is determined, in accordance with the guidance provided in MILPERSMAN 3610200, that a member is unqualified for further military service by reason of one or more of the following circumstances:

(1) Minor disciplinary infractions. A series of at least three but not more than eight minor violations of the UCMJ (non drug related) documented in the service record, within the current enlistment, which have been disciplined by punishment under the UCMJ. If one or more of the violations cited could have resulted in a punitive discharge or there are three or more periods of unauthorized absence of more than three days duration each or there are three or more punishments under the UCMJ within the current enlistment, process for pattern of misconduct and/or commission of a serious offense. 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 processing due to a pattern of misconduct, and/or commission of a serious offense, the processing should be under Entry Level Performance and Conduct (MILPERSMAN 3630200).

(2) A Pattern of Misconduct.

(a) A pattern of misconduct is defined in part as discreditable involvement with civil and/or naval authorities as evidenced by one or more of the following:

 1 . Two or more minor civilian convictions (misdemeanors) within the current enlistment, the latest civilian conviction (misdemeanor) to have occurred while assigned to the parent command. (Separation Activities, as defined in MILPERSMAN 3640476, are exempt from this requirement.)

 2 . Three or more punishments under the UCMJ within the current enlistment, the latest offense to have occurred while assigned to the parent command. (Separation Activities defined in MILPERSMAN 3640476, are exempt from this requirement.)

 3 . Any combination of three minor civilian conviction(s) (misdemeanor(s)[ )] and or punishment(s) under the UCMJ within the current enlistment, the latest offense to have occurred while assigned to the parent command. (Separation Activities defined in MILPERSMAN 3640476, are exempt from this requirement.)

 4 . Three or more periods of unauthorized absence of more than three days duration each within the current enlistment, the latest offense to have occurred while assigned to the parent command. (Separation Activities defined in MILPERSMAN 36404760, are exempt from this requirement.)

 5 . More than eight minor violations of the UCMJ within the current enlistment which have been disciplined by punishment under the UCMJ. The latest offense to have occurred while assigned to the parent command. (Separation Activities defined in MILPERSMAN 3640476, are exempt from this requirement.)

(b) A member may also be separated for a pattern of misconduct as exemplified by the following:

 1 . An established pattern of dishonorable failure to pay just debts. (Include financial statement prepared in accordance with MILPERSMAN 6210140.14 when case is forwarded.)

 2 . An established pattern of dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgments of a civil court concerning the support of dependents. Include copies of court order(s), judgments, etc.

(3) Commission of a serious offense. Commission of a serious military or civilian offense, if:

(a) The specific circumstances of the offense warrant separation; and,

(b) A punitive discharge would be authorized by the Manual for Courts-Martial for the same or a closely related offense.

(4) Civilian conviction

(a) Conviction by civilian authorities, or action taken which is equivalent to a finding of guilty, including similar adjudications in juvenile proceedings, when the specific circumstances of the offense warrant separation and, (1) a punitive discharge would be authorized for the same or closely related offense under the Manual for Courts-Martial, or (2) the sentence includes confinement for six months or more without regard to suspension or probation.

(b) Separation processing may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so. However, execution of an approved separation shall be withheld pending outcome of the appeal or until the time for appeal has passed, unless (1) the member has requested separation or (2) the member's separation has been requested by Commander, Naval Military Personnel Command and such a request has been approved by the Secretary of the Navy who may direct separation prior to final action in the appeal.

2. Counseling and rehabilitation

a. Separation processing for a series of minor disciplinary infractions or a pattern of misconduct may not be initiated until the member has been counseled by his or her parent command concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Only one counseling entry by the parent command is required. Such efforts shall include the following and be documented in the member's service record:

(1) Written notification concerning deficiencies or impairments.

(2) Specific recommendations for corrective action indicating any assistance available.

(3) Comprehensive explanation of the consequences of failure to under take successfully the recommended corrective action; and

(4) Reasonable opportunity for the member to undertake the recommended corrective action.

b. Counseling and rehabilitation are not required if the reason for misconduct separation is commission of a serious offense, civilian felony conviction or a similar juvenile adjudication.

3. Characterization or description. Normally under Other Than Honorable Conditions, 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 and the separation is approved by Commander, Naval Military Personnel Command, or higher authority. When characterization of service under Other Than Honorable Conditions is not warranted for a member in entry level status, the separation shall be described as Entry Level Separation.

4. Procedures

a. The Administrative Board Procedure (MILPERSMAN 3640300) shall be used; however, use of the Notification Procedure (MILPERSMAN 3640200) is authorized if characterization of service under Other Than Honorable Conditions is not warranted as described in MILPERSMAN 3610300.3c.

b. When a member is processed for separation for a commission of a serious offense or civilian conviction, the Administrative Board Procedure (MILPERSMAN 3640300) shall be used.

c. Request that the member execute a signed statement of awareness and request for or waiver of rights after his or her receipt of Notice of Administrative Board Procedure Proposed Action or, in the case of members processed for minor disciplinary infractions or a pattern of misconduct wherein a General Discharge is deemed appropriate, after receipt of Notice that the Notification Procedure (MILPERSMAN 3640200), is to be used.

d. Forward the processed case by letter of transmittal to Commander, Naval Military Personnel Command (NMPC-83). Ensure the member's full name, rate and SSN have been indicated on each page of the case. Refer to NAVMILPERSCOMINST 1910.1 for message submission option.

e. Misconduct involving homosexuality shall be processed in accordance with MILPERSMAN 3630400. Misconduct involving a fraudulent entry shall be processed in accordance with MILPERSMAN 3630100. Misconduct involving drug abuse shall be processed in accordance with MILPERSMAN 3630620.

f. A member who is absent without authority may be processed under this article without returning to military control in the following circumstances:

(1)      Absent without authority after receiving notice of initiation of separation processing.
(2) When prosecution of the member appears to be barred by the Statute of Limitations, Article 43 UCMJ, and the statute has not been tolled by any of the conditions set out in Article 43(d).

(2) When the member is an alien and appears to have gone to a foreign country where the United States has no authority to apprehend the member under treaty or other agreement.

g. A member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he or she becomes eligible for that pay, unless his or her release is approved by the Secretary of the Navy.

h. In such cases as described in subparagraph 5f, the Notice required in either MILPERSMAN 3640200 or 3640300 shall:

(1) Specify that the separation has been suspended until a specific date (not less than 30 days from the date of mailing the notice) in order to give the member the opportunity to return to military control and, if the member does not return to military control by such a date, that the separation process shall continue.

 (2) Be sent to the member by registered mail or certified mail, return receipt requested (or by an equivalent form of notice if such service by U.S. Mail is not available for delivery at an address outside of the United States) to the member's last known address or the next of kin.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87, Missing movement, and Article 108, Destruction of government property, if adjudged at a Special or General Court-Martial.
C. 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 which 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.
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.”

PART V - RATIONALE FOR DECISION
Discussion
         After a thorough review of the records, facts, and circumstances unique to this case, the Board determined that the characterization of the applicant’s service is equitable. The discharge shall remain : UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.
         The applicant was discharged on 831206 under other than honorable conditions by reason of misconduct due to the commission of a serious offense (A and B, Part IV). The record clearly documents the factors upon which the discharge was based. On 830217, applicant self-referred for screening for alcoholism, and a Medical Officer diagnosed him as dependent and recommended inpatient alcohol treatment. In a Substance Abuse Report dated 830218, the Commanding Officer concurred with alcohol residential treatment and cited good prognosis for further naval service. Applicant entered NRMC OAKLAND, CA for 6 weeks of inpatient treatment. During treatment, he admitted to alcohol consumption since age 13, blackouts, craving for alcohol, fights while drinking, periods of remorse and self-reproach after drinking and getting drunk in spite of making a firm decision to have “just a few” drinks. He also admitted to pre-service drug usage – 5 tabs of LSD. He was administered Antabuse daily. Applicant was discharged after only 10 days of treatment because, while he admitted he was alcoholic, he rationalized, denied and evaded other problems. He was also withdrawn and wasted group time in group therapy and discussions. On 830510, applicant was awarded NJP for Unauthorized Absence (UA) and Missing ship’s movement, and he also received a Retention Warning. H e received NJP on 830810 for UA and Mutilating his ID card intentionally, and on 831123, he received his third NJP for UA and Missing ship’s movement. On 831123, applicant was notified of intent to recommend administrative separation under other than honorable conditions by reason of misconduct due to pattern of misconduct and the commission of a serious offense. He waived all his rights except the right to obtain copies of the documents used to support the basis for the separation. The Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct as evidenced by a pattern of misconduct and commission of a serious offense, stating, “…SNM displays no potential for continued useful service and it is considered that further acts of misconduct are likely to occur …” On 831129, CNMPC directed applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The discharge and characterization of service were consistent with Navy policy and standards of discipline, and were proper and equitable (C and D, Part IV).

         In applicant’s only issue, he states, “The majority of my problems were indirectly related to a drinking problem. I’ve been dry for 4 years now and wish to become a merchant marine.” The Board commends the applicant on his efforts in overcoming his alcohol problem and redirecting his life; however, this was determined to be insufficient mitigation to overcome the conduct that resulted in his discharge. Further, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in this issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge proper and appropriate.

         Although not raised as an issue, the following information is provided for the applicant’s edification. In addition to the service record, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (C, Part IV). While it is true the applicant cannot go back and undo his prior mistakes, he does have the opportunity to contribute in a positive way to society and warrant clemency. Those contributions that would be looked upon favorably by this, or any other Board, include educational pursuits, employment track record, being a contributing member of society and making a positive impact in the community through volunteer work. The applicant must prove that his post-service conduct has been above reproach and he is making a valid attempt at making amends for the misconduct he committed during the period of service under review. In this case, the applicant must provide documentation that he has received treatment for his alcohol incidents with civilian authorities.

         The 15 year window during which applicants may appeal their discharges was established to allow time for establishing oneself in the community and for making these substantial, documented life style changes and community contributions. The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.


INFORMATION FOR THE APPLICANT


Decision

The NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.


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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