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NAVY | DRB | 2001_Navy | ND01-00059
Original file (ND01-00059.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND01-00059

Applicant’s Request
The application for discharge review, received 001017, requested that the characterization of service on the discharge be changed to Honorable or General/under Honorable conditions. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that he was reaching the 15 year point and the Naval Discharge Review Board (NDRB) suggested he consider a personal appearance hearing review. The applicant responded requesting a personal appearance hearing discharge review and obtained representation from the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 010919. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety but relief is warranted under equitable grounds, even though the discharge was determined to have been otherwise equitable at the time of issuance. The Board’s vote was 3 to 2 that the characterization of the discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT – Commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues
1. (Equity Issue) This former member avers that acute alcoholism impaired his ability to serve, contributed to his violations of the UCMJ and sufficiently extenuated his misconduct of record to warrant separation under honorable conditions.

2. (Equity Issue) As evidenced by his supporting documentation, this former member further opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Freedom House letter of October 3, 2000 (alcohol/drug addiction recovery)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR            820323 - 821219  COG - to enlist USN

 Period of Service Under Review :
Date of Enlistment: 821220               Date of Discharge: 860404

 Length of Service (years, months, days):

         Active: 03 03 18 (Doesn't exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 36

 Highest Rate: RMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.67 (3)    Behavior: 3.27 (3)                OTA : 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: Navy "E" Ribbon, Humanitarian Service Medal (w/Star), SSDR

Days of Unauthorized Absence: 5

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :
831005:  Sick Call: 19 year old with complaint of nausea and stomach cramp. Pt states he had 5 beers last night.
         Assessment: Stomach [……]. due to ETOH ingestion.
         Plan: Mylanta. Return to duty.
841203:  Sick Call: Pt reported to sickbay escorted by quarterdeck watch. History: Was brought by SFP to the ship for ETOH. Pt stated "I'm fine".
         Assessment: ETOH
         Plan: Return to counseling for re-evaluation 8 hrs.
850304:  Sick Call: Pt is a 20 year old white male complaint of alcohol ingestion. Pt was out drinking last P.M. and was picked up by base police as he came through gate. Was brought back to ship by base police. Blood alcohol level was 0.28. Pt denies emotionally problems, but states he has a drinking problem for few months. Pt is asking for help to end drinking problem.
         Assessment: Alcohol ingestion. Alcohol dependent.
         Plan: Increase fluids, avoid alcohol and refer to ships NASAP.

850522:  Applicant successfully completed drug abuse rehabilitation program.

850708:  Medical Clinic: USS HECTOR directed referral to sick bay for reinstitution of Antabuse Therapy. Pt was on Antabuse earlier without problems. Pt involved in alcohol related altercation last week indicating relapse to drinking. He has not began aftercare program yet, 1 st meeting tonight. Meanwhile, will replace on Antabuse. Will investigate rescheduling ARS.

850912:  NJP for violation of UCMJ, Article 134: incapacitated for performance of duties through prior wrongful indulgence in intoxicating liquor or drug.
         Award: Forfeiture of $380 per month for 2 months, restriction and extra duty for 45 days, reduction to E-X. No indication of appeal in the record.
850912:  Retention Warning: Advised of deficiency (misconduct as evidenced by having been to CO's NJP for wrongful indulgence in intoxicating liquor or drugs), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
850912:  Recommendation for advancement to RM3 withdrawn due to misconduct.

851225:  Emergency Care/Treatment: Pt was picked up from front gate in ambulance and brought to ER. ETOH on breath. Pt complaints back pain. Pt states had back trauma times two, once in football, one in car accident. Pt was not checked 8 months ago when Pt had car accident. Pt drank 12 cans of beer yesterday.
         Assessment: ETOH intoxication. Back pain probably due to previous trauma.

860107:  On unauthorized absence from 0745 until 1000.
860107:  Emergency Care/Treatment, NAVHOSP Yokosuka: Chief complaint - intoxicated. Pt has been drinking all night. Best friend died and he found out last P.M. Not coping with death.

860110:  On unauthorized absence from TPU Subic Bay, RP.

860113:  Surrendered at TPU Subic Bay, RP and transferred to USS HECTOR for disciplinary action. (3 days).

860115:  On unauthorized from USS HECTOR at Subic Bay, RP.

860117:  Surrendered on board. (2 days)
860130:  NJP for violation of UCMJ, Article 86 3 Specs): Unauthorized absence (0745, 86JAN07 until 1000, 86JAN07; 0715, 86JAN10 until 1040, 86JAN13; 0700, 86JAN15 until 1305, 86JAN17); violation of UCMJ Article 134 (4 Specs): failure/dishonorably failing to pay just debts.
         Award: Forfeiture of $358 per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.

860214:  Member's statement: "I feel that it is unjustified to get an Other Than Honorable discharge for just minor altercations and two Captain's Mast. I feel it is justified that I receive a General Discharge Under Honorable Conditions. Also I am a very good radioman and a good sailor. I feel that because of two Captain's Mast, that I should by no way, justifiably receive an Other Than Honorable Discharge. I feel I should receive a General discharge by my evaluations."
860227:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense as evidenced by having been to CO's nonjudicial punishment on two separate occasions during your current enlistment for violation of Article 134 of the UCMJ.
860227:  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 and the right to submit a statement.

860228:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense. Commanding officer’s comments (verbatim): "RMSA (Applicant) is being processed for admin discharge by reason of misconduct due to Commission of serious offense for violation of Article 134 of the UCMJ. He has been to CO's NJP twice in a five month period for a series of offenses, including UA, incapacitated for duty due to alcohol indulgence and failure to pay just debts. RMSA (Applicant) has brought discredit upon the naval service and has become an administrative burden to the command and by his actions and attitude toward military regulations does not warrant any further lost managerial time. This is evidenced by his misconduct ashore in a foreign country whereby he was awarded CO's NJP for a series of failures to pay just debts to several foreign nationals as noted in paragraph 5 above. SNM has singed a page 13 warning on 12 Sep 85. He has been counseled repeatedly by the entire chain of command and was given more than ample opportunity to reverse his negative attitude. His potential for further useful service is non-existent. Reference (d) (COMNAVMILPERSCOM WASHDC 221929Z FEB86) indicates that processing for alcohol rehabilitation failure is not appropriate. Accordingly, I strongly recommend he be separated from the naval service with an Other Than Honorable discharge. Due to HECTOR being on extended deployment it is requested that SNM be transferred to any immediate PSD/TPU pending ADSEP approval."
860306:  NJP for violation of UCMJ, Article 112A: wrongful use of controlled substance to wit: marijuana as it was found positive on a urinalysis test on 14FEB86.
         Award: Forfeiture of $319 pr month for 2 months, extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
860308:  CO, USS HECTOR advised CNMPC that applicant received another NJP and the recommendation for discharge due to misconduct due to Commission of serious offense submitted on 28 Feb 86 is appropriate and that the discharge package be corrected as such and correct the date in the LON, para 7 to show 27Feb86 vice 11Feb86.

860320:  CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.
860322:  Declined VA hospital treatment due to alcohol/drug dependency.

 860401:  Declined to participate in a drug/alcohol rehabilitation program and acknowledged understanding that further treatment and/or benefits will be administered under the jurisdiction of the VA.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 860401 under Other Than Honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper (D and E), but relief is warranted under equitable grounds, even though the discharge was determined to be equitable at the time of issuance. The applicant provided evidence and testimony to show that he has overcome significant adversity and hardships, due to his alcoholism, has successfully attained treatment and has established himself as a productive member of his community. During his enlistment, alcohol abuse was at the root of his misconduct. The applicant has maintained his sobriety for the past twelve years and although his family obligations and job commitments consume the majority of his life, he unselfishly dedicates his spare time to counseling others that suffer from alcohol and substance abuse. The Board determined this is the true measure of this applicant’s character. After reviewing his service records and all supplemental documents provided, the Board determined the applicant has sufficiently demonstrated he is a person of good character and conduct, and is deserving of relief. His discharge shall be changed to under Honorable conditions (General). Because of the applicant’s repeated misconduct during his military service, it was determined that an upgrade to Honorable was not warranted. Partial relief granted.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560, Change 10/85, effective
16 Dec 85 until 05 Oct 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 134 (failing to pay just debts) if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.
E. 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 " afls10.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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