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NAVY | DRB | 2000_Navy | ND00-00834
Original file (ND00-00834.rtf) Auto-classification: Denied


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

ex-AOAN, USN
Docket No. ND00-00834

Applicant’s Request
The application for discharge review, received 000620, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant designated the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010125. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge Under Other Than Honorable conditions is inequitable because it was based on one incident after 3 years, 9 months, and 19 days of continuous honorable active service. (DD-214, Item 18).

2. My discharge Under Other Than Honorable Conditions is inequitable because the data used in the Alcohol Evaluation on 23 November 1993 by the CAAC Center at NAS Lemoore, CA., to make the determination that I showed no potential for further service, is data that occurred during the period of "continuous honorable active service", from 12 October 1989 until 31 August 1993.

3. My discharge Under Other Than Honorable Conditions is inequitable based on the recommendation of Dr. J. D_, MD, Drug/Alcohol Screening Evaluation of 21 October 1993 at the Naval Hospital, Lemoore, CA. For me to be assigned to a Level III Alcohol Treatment Program and to be retained in the Navy based on previous good service. My continuous honorable active service from 12 October 1989 until 31 August 1993 was apparently not considered by the CAAC Center in their evaluation of 23 November 1993.

4. My discharge Under Other Than Honorable Conditions is inequitable in that a Psychological Evaluation was not ordered by Dr. J. D_, MD. In the doctor's hand written notes on the Drug/Alcohol Screening Evaluation of 21 October 1993, indicated that I was under financial pressure because of my transfer from the East coast to the West Coast, which increased my stress and caused me to use alcohol.

5. My discharge Under Other Than Honorable Conditions is inequitable in that a Psychological Evaluation was not ordered by Dr. J. D_, MD. The doctor's hand written notes on the Drug/Alcohol Screening Evaluation of 21 October 1993, indicated that there was a family history of alcohol abuse by both my father, grandmother, and uncles. The genetic hereditary concept of alcoholism was not considered or investigated.

Submitted by DAV:

6. Since discharge the FSM (former service member) has show himself to be a good citizen, and member of his community wit documentation of record submitted in support and demonstrating his consistent excellent work record.

7. It is readily apparent that the FSM has become a solid member of his community, and by his own statement is apologitic for his past indiscretions, and seeks equitable relief from the Board in the form of an upgrade of his discharge. Also as noted on his issue statement the FSM has pointed out five areas of improprieties by his Chain of command at discharge, and we referred the Board to these points for careful review.

8. We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's letter to the Board dated Sep 02, 1999
Medical record documents (3 pages)
Job change announcement concerning applicant dated 4/21/99
City of Pensacola Police Check dated mar 2, 1999
Character Reference letter from applicant's Team Leader, C_ P_, dated 7/13/99
Letter of Employment from D_ Manufacturing dated 4/2/98
Letter from Previous Employer, F_ Foods, dated March 30, 1998
Congratulations letter dated Aug 19, 1997 to Applicant for being in the President's Club for 3 months
Congratulations letter dated Jul 15, 1997 to Applicant for being in the President's Club for 3 months
Best of the Best Certificate dated July 2, 1997 for achieving TMI
Letter from Previous Employer, F_ Companies (05/07/95-01/01/97) dated Jul 27, 99
Service Record pages (6)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               891012 - 930831  HON
         Inactive: USNR (DEP)     890906 - 891011  COG

 Period of Service Under Review :
Date of Enlistment: 930901               Date of Discharge: 940214

 Length of Service (years, months, days):

         Active: 00 05 14
         Inactive: None

 Age at Entry: 22                          Years Contracted: 3

 Education Level: 12                        AFQT: 35

 Highest Rate: AO3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.2 (2)     Behavior: 3.3 (2)                 OTA: 3.3

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NDSM, KLM, SWASM, SSDR(2)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

930301:  Civil Conviction of DWI. Plead and adjudged guilty, fined $482.50, revoked license 6 months, 50 hours community service, DUI school.
930901:  Reenlisted at Mayport, FL for term of 3 years.

 931021:  Naval Hospital, Lemoore, Drug/Alcohol Screening: 22 year old black male for alcohol screen. Drinking history - 10 beers and 2-3 mixed drinks (BAC .14) on 15 Oct, getting DUI civilian for speeding on highway. Completed successful CAAC Level II training May 1993. Pt states he only drank "socially". Member is borderline alcohol dependent and abuser. Recommend Level III treatment if service record shows he is an excellent sailor, admin separation if service record shows he is marginal, otherwise, if he's a great worker, I recommend retain him and send to Level III.
931102:  Civil Conviction (Municipal Court of State of California): DUI (.08% or more), driving a vehicle in excess of 55 MPH. Found guilty of both charges. Awarded $1,8520.40 fine, 40 hours volunteer community service, imprisonment for 48 hours in county jail and completion of DUI school in the NADSAP Program on base.

931124:  Dir, CAAC, Lemoore, CA: Pt evaluated following referral by command DAPA due to civilian DUI arrest, BAC 0.14. Member is alcohol dependent based on this alcohol related incident, a previous civilian DUI arrest, treatment for alcohol abuse at Level II (CV-60) in May 1993 and he was diagnosed as alcohol dependent by a medical officer on 21 Oct 1993. He also had a positive urinalysis for cocaine in Dec 1991. Member is a rehabilitation failure due to incurring another alcohol incident while in his formal aftercare period following completion of Level II treatment in May of 1993. Recommend he attend a minimum of four AA meetings weekly unit separated from service. He should be closely monitored and held strictly accountable for his actions. Member shows no potential for further service.
940110:  Applicant notified of intended recommendation for discharge by reason of misconduct due to alcohol rehabilitation failure and misconduct due to civil conviction occurring during current term of military service as evidenced by your convictions of 15 October 93 and 14 December 93 and the characterization of service may be under other than honorable conditions.
940110:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights. Applicant did not object to separation.

940111:  Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to alcohol rehabilitation failure and misconduct due to civil conviction. Commanding officer’s comments (verbatim): "AO3 (Applicant) reported to this command as a FRAMP student on 11 October 1993. On 15 October 1993, he was arrested by civilian authorities for excessive speeding and driving under the influence. His BAC was .014%.

         During AO3 (Applicant)'s prior enlistment, he was the subject of CO's Mast and found guilty of violation of Article 112A of the UCMJ (use of controlled substance: cocaine). At that time, AO3 (Applicant) was not offered any rehabilitation treatment. On 26 February 1993, he was arrested for driving under the influence. He was offered rehabilitative treatment. On 14 May, he completed this treatment and his aftercare treatment was initiated.

         AO3 (Applicant) has one additional CO's Mast for a UA charge. This servicemember has been diagnosed as alcohol dependent with no potential for future military service by both CAAC and a medical physical.

         My conclusion is this sailor has been afforded several opportunities to recognize his deficiencies, but has not successfully corrected his problem with alcohol. I am in complete concurrence with the diagnosis and recommend that he be separated. Due to his above average Enlisted Performance Evaluations, I recommend that his discharge be General under Honorable conditions."

940202:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 940214 under other than honorable conditions for misconduct due to civil conviction (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 applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.

The applicant states in issue 2 that his discharge is inequitable because “ the data used in the Alcohol Evaluation on 23 November 1993 by the CAAC Center at NAS Lemoore, CA., to make the determination that I showed no potential for further service, is data that occurred during the period of continuous honorable active service.” T he Director of the CAAC did state in his evaluation that the applicant had a DUI in his first enlistment. He also notes a second civil conviction on 931102 for DUI and the fact that the applicant had Level II treatment and was now considered an Alcohol Rehabilitation failure. The CAAC director makes a recommendation of alcohol/drug dependency and potential for further service. The CAAC director does not have the authority to separate or characterize a discharge. No relief based on this issue.

In response to the applicant’s issue 3, the applicant had an additional civil conviction after the applicant’s drug/alcohol screening of 931021. Additionally, the Dr.’s input is merely a recommendation and the Commanding Officer makes the decision and has the prerogative to begin administrative discharge proceedings. Relief is denied based on this issue.

 In the applicant’s issue 4, the applicant’s financial pressure has no bearing on the fact that the applicant committed misconduct when his was convicted of a DUI on 931102. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. No relief will be granted based on this issue.

In response to the applicant’s issue 5, the applicant’s family history of alcohol abuse are irrelevant to why the applicant was discharged. The applicant is responsible for his behavior. Furthermore, the Board does not accept alcohol abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct. While the Board recognizes that alcoholism and alcohol abuse are not, in themselves, offenses which constitute grounds for punishment, it reminds applicants who commit offenses while drinking that they are still responsible for their actions. They must accept the consequences of their misconduct or misbehavior, whether committed before or after they received rehabilitation treatment. No relief will be granted based on this issue.

In the applicant’s issues 6 and 7 of post service accomplishments, the Board finds there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided ample documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective
05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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