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NAVY | DRB | 2000_Navy | ND00-00481
Original file (ND00-00481.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND00-00481

Applicant’s Request
The application for discharge review, received 000306, requested that the characterization of service on the discharge be changed to Honorable and the reason for the discharge be changed to Expiration of Obligated Service. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant designated a civilian lawyer as his representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000928. 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: UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The applicant's discharge is improper and/or inequitable and should be recharacterized to Honorable because applicant should have been treated for alcohol abuse and attempts made at rehabilitation pursuant to OPNAVINST 5350.4.

2. The applicant's evidence is sufficiently credible evidence to establish that he had an alcohol abuse problem while in service and should have been discharged for alcohol abuse. Failure o reach this conclusion would violate due process and fundamental principles of administrative law because an adverse conclusion is inconsistent with decisions in which similar evident has been accepted by the Boards to prove alcoholism.

3. The standards for determining character of service are to be applied to the applicant's overall record of service, including, however, those disciplinary actions taken against the applicant and/or those evaluation marks which were related to the applicant's alcohol abuse. An application of these standards would warrant an Honorable Discharge. To conclude that the applicant deserves a less than below average evaluations which were related to the applicant's alcohol abuse is inconsistent with past Board decisions and therefore violates due process and fundamental principles of administrative law. The Board has considered alcohol-related acts of indiscipline in the other cases which were upgraded to Honorable because all or most of the acts of indiscipline and/or periods of below average evaluations ere related to the applicant's alcohol problem.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
M_ L. D_, Attorney at Law, Brief in Support of Application for Review and Upgrade dtd Mar 29, 2000 (10 pages)
Steam Div Officer's memo dtd Dec 12, 1997, stated Applicant ranked as "HONOR GRADUATE" and was recommended for Accelerated Advancement Program with a Page 13 attachment
Applicant's Medical Record (6 pages)
CO, USS KENNEDY's recommendation for applicant's discharge dtd Sep 21, 1998
Discharge Authority (COMCARGRU TWO) message of Oct 2, 1998
Copy of MILPERSMAN Article 1910-152 (Separation by Reason of Alcohol Abuse Rehabilitation Failure)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     970322 - 970716  COG

 Period of Service Under Review :
Date of Enlistment: 970717               Date of Discharge: 981009

 Length of Service (years, months, days):

         Active: 01 02 23 (Doesn't exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 51

 Highest Rate: MMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 6 (20 days confinement)

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

980514:  NJP for violation of UCMJ, Article 92 (3 specs): on or about 98APR28, fail to obey a lawful general regulation, to wit: Chap 2, Sec 2, Article 2201.6C, U.S. Navy Uniform Regulations, by wrongfully having his naval pierced with jewelry while on active duty; did on or about 98APR28, fail to obey a lawful gener regulation, to wit: Art 1162, U.S. Navy Regulations, by wrongfully possessing two 12 ounce Bud Light beer cans and one 350 MD bottle of Jim Beam Kentucky Straight Bourbon Whiskey in his berthing locker; and on or about 98APR28, fail to obey a lawful general regulation, to wit: para 4B, CNBJAXINST 1700.1, by wrongfully consuming alcohol while under the age of 21. Violation of UCMJ, Article 134: was on or about 98MAY28, drunk and disorderly, which conduct was prejudicial to good order and discipline within the Armed Forces.
         Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
980514:  Retention Warning: Advised of deficiency (CO's NJP held on 14 May 1998 for violation UCMJ, Article 92 and Article 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980530:  NJP for violation of UCMJ, Article 90: having received lawful command from CO, USS JOHN F KENNEDY, his superior commissioned officer, to perform extra duties, did, on board ship, on or about 98MAY28, willfully disobey the same; violation of UCMJ Article 91: having received a lawful order from a first class petty officer, to get up off the deck and get to work, an order which it was his duty to obey, did, on board ship on or about 98MAY28, willfully disobey the same; violation of UCMJ Article 92: on board ship, on or about 98MAY28, was derelict in the performance of his duties in that he willfully failed to perform extra duties, as it was his duty to do.
         Award: Forfeiture of $519 per month for 1 month, restriction and extra duty for 7 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
980603:  To unauthorized absence as of 1900.

980605:  Declared a deserter for breaking restriction.

980609:  Surrendered on board USS JOHN F KENNEDY, at 0714 (6 days/s)

980626:  Summary Court Martial
                  Charge I: violation of UCMJ, Article 86 (6 specs)
          Specification 1: on or about 98Jun03, without authority absent himself
from his unit and remain absent until on or about 98JUN09 (6 days)
Specifications 2 thru 6: on or about 0630, 98MAY21: 1230,
 98MAY25; 1230, 98JUN03; 0530, 98JUN11; 0530, 98JUN17, without authority failed to go at the time prescribed to his appointed place of duty, to wit: restricted man's musters.
Charge II: violation of UCMJ, Article 90: having received a lawful command from CO, USS JF KENNEDY his superior commissioned officer, not to proceed off the ship except as authorized per punitive restriction and/or extra duty order dtd 98MAY14, did on or about 98JUN03, willfully disobey the same.
Findings: Charge I and specifications thereunder and Charge II - guilty.
Sentence: Forfeiture of $617 per month for 1 month, reduction to E-1 and confinement for 30 days.
CA 980718: Sentence approved and ordered executed.

980616:  To confinement.

980715:  Released from confinement (20 days).

890811:  Medical Eval: 19 year old with 13 months of active duty service released from brig 20JUL98, confined for UA & missing restricted men's muster. Unmarried, no children, denies drug use since coming on active duty. Does have alcohol abuse by history - age 12 was first "drunk". Average weekly consumption: 12 beers/day, will add liquor on weekends. Has had ARI twice but never documented……..Pt awaiting sentencing from courts martial and does not know when he will be released from USN but has been either on restriction or in the brig for the entire summer. Pt's biggest concern is his ability to control his anger. His fear that if he loses control he could harm someone; however, he relates that he would hurt someone else before himself!
         Assessment: Non-suicidal - no gesture. Immature traits with coping skills difficulty, alcohol dependence.
         Plan: (1) Consult to CDR A_ for Anger/Stress Mgmt. (2) immediate referral to CAAC. (3) Continue stress mgmt through FSC Mayport. (4) Contract for Safety with me (LT E_).

980803:  The record of trial in the case of the applicant was previously reviewed pursuant to Article 64(a), Uniform Code of Military Justice and R.C.M. 1112, Manual for Courts-Martial, United States (1995 Edition) and recommended dismissing Charge II and its specification thereunder and suspending that part of the sentence adjudging forfeiture of 2/3 par per month for one month for six months.

980806:  The General Courts-Martial Convening Authority dismissed Charge II and its sole specification and ordered a rehearing on sentencing due to procedural errors.

980814:  Rehearing of Summary Court Martial sentencing was held on 980814.
         Charge I: violation UCMJ, Article 86: UA for total of 6 days from 98JUN03 to 98JUN09; UA (5 specs) from appointed place of duty at 0630, 98MAY21; 1230, 98MAY25; 1230, 98JUN03; 0530, 98JUN11; and 0530, 98JUN17.
         Charge II: Dismissed by GCMCA ON 98AUG06.
         Sentence: Confinement for 20 days, forfeiture of $300 pay per month for 1 months and reduction to E-1.
         CA 980908: Sentence approved and order executed.

980908:  Summary Court Martial held on 98JUN26 is disallowed this date. All rights and privileges restored to member.

980916:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct and misconduct due to Commission of serious offense.
980916:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980921:  Commanding Officer, USS JOHN F KENNEDY recommended discharge under other than honorable conditions by reason of misconduct due to a Pattern of misconduct and misconduct due to Commission of serious offense. Commanding officer’s comments (verbatim): "MMFR (Applicant) was punished twice at Captain's Mast for numerous orders violations, drunk and disorderly, and dereliction of duty. At Summary Court-Martial, he was found guilty of an unauthorized absence and repeatedly missing musters. MMFR (Applicant) refuses to abide by the Navy's rules, and will not conform his behavior to Navy standards. I strongly recommend that he be separated from the naval service under other than honorable conditions for misconduct due to a pattern of misconduct."

981002:  GCMCA (COMCARGRU TWO) directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to a Pattern of misconduct and further directed that members who are drug/alcohol dependent must be offered Level III inpatient treatment prior to discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981009 under Other Than Honorable conditions for misconduct due to a Pattern of misconduct (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 the applicant’s issue 1, the Board determined this issue is without merit. The applicant states his discharge was improper and inequitable because he should have been treated for alcohol abuse and rehabilitated. Alcohol abuse treatment or rehabilitation does not equate to retention, nor an Honorable discharge. The applicant was discharged for violating the UCMJ. Alcohol may have influenced his behavior but he remains accountable for his actions. It was the determination of the member’s Commanding Officer that applicant had no potential for continued, active military service and therefore recommended separation. Although the applicant may not have received alcohol rehabilitation treatment prior to his discharge, he remains eligible for VA treatment, with documentation in his medical record that shows he was alcohol dependent prior to separation. The applicant’s discharge was proper and equitable. Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit. The applicant states he had an alcohol abuse problem while serving in the Navy and should have been discharged for alcohol abuse. It is the responsibility of the applicant’s Commanding Officer to determine the reason for his discharge, even though the applicant’s misconduct influenced both the characterization and reason. The applicant was correctly processed for a pattern of misconduct and commission of a serious offense, buy his former Commanding Officer. The GCMCA directed the most appropriate of the two reasons for separation. The applicant’s violations of UCMJ, Articles 90, 91 and 92 were serious enough to be punishable by court martial and result in a punitive discharge. His command chose administrative separation instead. The discharge was proper and equitable. Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit. The applicant states the standards for determining character of service should be applied to his overall record of service and these standards would warrant an Honorable discharge. This Board uses propriety and equity as the standards to determine if a discharge upgrade is warranted. If proper discharge procedures were followed, and the characterization of service was equitably assigned, as compared to anyone who would have committed the same misconduct, then there is no other obligation this Board is required to consider. The applicant’s former Commanding Officer followed proper discharge procedures. Even though the applicant may not have received alcohol abuse treatment prior to his separation, his misconduct was justification for separation. He was accountable for his actions. The applicant had a well established pattern of misconduct and an under Other Than Honorable conditions discharge was and remains an appropriate characterization. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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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