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NAVY | DRB | 2000_Navy | ND00-00022
Original file (ND00-00022.rtf) Auto-classification: Denied


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

ex-BM3, USN
Docket No. ND00-00022

Applicant’s Request
The application for discharge review, received 991007, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority. The applicant requested a documentary record discharge review. The applicant designated the Military Justice Clinic, Inc., Atlanta, GA as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000616. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, 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: GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority: MILPERSMAN, Article 3630550.

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks, should contain the following statement: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 86 MAY 14 UNTIL 95 AUG 14”. The original DD Form 214 should be corrected or reissued as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. The Applicant's discharge is improper because the applicant should not have been discharge as a Alcohol rehabilitation Failure due to the fact that command never enrolled him in the appropriate step class.

2. The Applicant's discharge is improper because the applicant did not have assistance of counsel and did not have time to consider the discharge.

3. The Applicant's discharge is improper because while the applicant was confronted with one issue, he was never the less discharged for totally different reasons.

4. The applicant's discharge is inequitable because it is too harsh, much too harsh and the standard used in grading discharges, if used, the applicant's record would warrant an honorable discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter of Appreciation from Commander, Naval Beach Group ONE dtd 20 May 96
Enlisted Performance Evaluation (94APR01 - 95MAR31) [From previous enlistment]
Enlisted Performance Evaluation (96JAN27 - 97FEB13)
Copy of DD Form 214 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               921002 - 950814  HON
                                             880316 - 921001  HON
         Active: USNR              860514 - 880315  To enlist USN
         Inactive: USNR            851130 - 860513  Reported ACDU

 Period of Service Under Review :
Date of Enlistment: 950815               Date of Discharge: 970213

 Length of Service (years, months, days):

         Active: 01 05 29
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

Education Level: 12                        AFQT: 22

 Highest Rate: BM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)     Behavior: 1.0 (1)                 OTA: 2.86 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: Battle "E: Ribbon, AFEM, NUC, CAM, GCM(2), SSDR(w/Bronze Star), SWASM(w/Bronze Star)

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority: MILPERSMAN, Article 3630550.
Chronological Listing of Significant Service Events :

950815:  Reenlisted for a term of 4 years at NAS North Island.

 951201:  Civilian Conviction: Driving under the influence of alcohol. [EXTRACTED FROM CO, ASSAULT CRAFT UNIT ONE 'S LTR OF 12 FEB 97.]
951227:  Branch Medical Clinic, NAS North Island: 1 st drug/alcohol incident. On 1 Dec 95, pt arrested for DUI by civilian police. Pt performed "U-turn" and was unaware of sign prohibiting U-turn. Pt had been at dance club - had two rum/coke - was driving to fast food restaurant when made unlawful turn. Denies having more than 2 drinks.
         Assessment: Is not dependent upon alcohol. I alcohol abuser. Does not require immediate hospitalization.
         Plan: Refer to Level II when scheduling available. Command level counseling.
960613:  Civilian Conviction: Driving under the influence of alcohol. [EXTRACTED FROM CO, ASSAULT CRAFT UNIT ONE 'S LTR OF 12 FEB 97.]

960807:  COMNAVBASE San Diego, CA ltr to CO, ACU ONE: Applicant interviewed at 0730 at CAAC San Diego on 22 Jul 96 as a result of a civil apprehension for driving under the influence of alcohol (BAC .10) dtd 13 Jun 96. Screening was hindered by incomplete DAPA paperwork; no documentation of BAC for DUI dated 1 Dec 95. Applicant appears to meet diagnostic criteria for alcohol abuse. Member's drinking is characterized by use which interferes with safety and use which causes legal problems. Member is eligible for administrative separation due to alcohol rehabilitation failure. If retained, however, strongly recommend Level II treatment. Member shows fair motivation for treatment. In interim, strongly recommend regular monitoring and support from command Drug and Alcohol program Advisor.

970123:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer, violation of UCMJ Article 92: failure to obey order or regulation, violation of UCMJ Article 134: threat, communicating.
         Award: Restriction and extra duty for 45 days (suspended for 6 months), reduction to E-4. No indication of appeal in the record. [EXTRACTED FROM CO, ASSAULT CRAFT UNIT ONE 'S LTR OF 12 FEB 97.]

970130:  Applicant notified of intended recommendation for discharge with general (under honorable conditions) by reason of alcohol abuse rehabilitation failure.

970130:  Applicant advised of his rights and having elected not to 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.

970212:  Commanding Officer, Assault Craft Unit One, advised BUPERS that applicant was discharged on 13 Feb 97 with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 970213 with a general (under honorable conditions) due to alcohol rehabilitation failure (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

 In response to applicant’s issue 1, the Board found that the applicant was referred to Level II treatment and command level counseling by the Branch Medical Clinic, NAS North Island. Six months later, the applicant received his second DUI. The applicant was then eligible for separation due to alcohol rehabilitation failure. To permit relief, an error or injustice must be found to have existed during the period of enlistment under review. There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief.

In response to applicant’s issue 2, the Board found that the applicant waived his right to council on his Notification Procedure Acknowledgement. If the applicant had needed more time to “consider the discharge”, he should not have signed the Acknowledgement until he was certain of his decision. Relief will not be granted on this issue.

In response to applicant’s issue 3, the Board is confused as to what issue the applicant is referring to. The applicant could have been discharged for his UCMJ violations of Articles 91, 92, and 134 for which the applicant could have received an Under Other Than Honorable Conditions or a Bad Conduct Discharge. The applicant was fortunate to have received the discharge for alcohol rehabilitation failure. This issue warrants no relief.

In response to applicant’s issue 4, the Board is again confused by what the applicant refers to as the “standard used in grading discharges”. After reviewing the applicant’s performance evaluation averages, record of civil convictions, and record of non-judicial punishment, the Board finds no reason to upgrade the characterization of or change the reason for discharge. It must be noted that most Sailors serve honorably and well, and therefore, earn their honorable discharges. The applicant's service is accurately characterized as having been performed under general conditions. Relief is not warranted.
Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630550, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 " afls14.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      


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