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NAVY | DRB | 2001_Navy | ND01-00104
Original file (ND01-00104.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND01-00104

Applicant’s Request
The application for discharge review, received 001030, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010406. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Inequitable discharge.

I respectfully request that my discharge be changed to Honorable. I feel it was inequitable because the punishment was far more severe than the offenses. My discharge was based on only two isolated incidents, neither of which were severe enough to warrant an "other than honorable" discharge.
On October 31, 1991 I was arrested for suspicion of driving under the influence of alcohol. Because I was afraid, I refused the sobriety test that the Trooper wanted me to take and as a result was automatically convicted. I paid my debt to society for that offense. I was also punished by my Commanding Officer.
On February 8, 1992 I tested positive for THC. I was at a party and made a very bad, immature decision to accept what was offered. My punishment for that decision has cost me not only my future with the U. S. Navy but also as a Submariner. I was not drug user then, and have not used any drug since that one time - and I never will.

2. Only two offenses in almost three years of honorable service.
I served my country well with almost three years of honorable and faithful service with no other offenses.

3: Excellent record as a Seaman except for these two incidents.
My service records will substantiate the fact that I was a good sailor and served with pride.

4. I am a hard working man with high morals and work standards and have enclosed documentation in support of my statement I have been employed by the Hemet Unified School District for over 4 years and have attached Document 1) seven recommendations for promotion from various staff members of the Hemet Unified School District attesting to my character, job performance and congeniality with other staff members which resulted in my promotion to Head Custodian for the Santa Fe Middle School (my Job Assignment Memorandum is attached as Document 2). I have also attached a letter of recommendation for an Employee Excellence Award (Document 3), a Thank You Letter from the Acacia Middle School (Document 4), two letters of recommendation (Document 5) and my last Employee Evaluation Report (Document 6).

I have also served my community by serving on Jury Duty on three separate occasions.

My main purpose in filing this appeal is to have my discharge changed to Honorable so that I may have the opportunity to again serve my country. I have talked with my local Army Recruiter about enlisting the active Army Reserve but I cannot enlist unless I can get my discharge changed to Honorable. I feel that I have a lot to offer my country and will make an excellent soldier.

5. Background : Applicant enlisted in the United States Navy May 16, 1989. On November 3, 1991 he received non-judicial punishment (NJP) for violation of UCMJ Art.111 Drunken or reckless driving and received 15 days restriction and forfeiture of $222 for two months. On February 23, 1992 he received NJP for wrongful us of marijuana and received 60 days restriction, forfeiture of one half months pay, and reduction in rate to E2. On April 15, 1992 he received an other than honorable discharge due to misconduct - commission of serious offense. Applicant spent 3 years and 5 months on arduous sea duty.

 Analysis : Applicant was enrolled in command level II Alcohol Treatment Plan awaiting non-residential counseling. A Drug and Alcohol Evaluation of March 6, 1992 from CAAC determined him to be alcohol dependent. There is no evidence of referral to an inpatient treatment facility for alcohol addiction.

 Contentions : The applicant should have been referred for screening when he was found guilty at NJP in November 1991. Had he been identified as alcohol dependent at that time and referred for treatment the second incident may well not have happened. While he was enrolled in a command treatment plan the timeframe is not considered long enough to allow him to overcome his addiction. It is a well-established medical fact that alcoholism is a disease that sometimes leads to drugs abuse. It is a disease that requires treatment. This young Sailor never received that treatment. He spent the most of his enlistment on arduous sea duty and this should be taken into consideration.

Numerous references submitted attest to the applicant's conscientiousness and dedication to job performance since leaving the service. He is supportive and positive with staff and students in a school environment. He provides positive motivation to the students.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for fairness and equity. We ask that the Board take, his post-service conduct in consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Character reference dated May 8, 1997
Letter of recommendation dated April 15, 1997
Character reference dated April 15, 1997
Letter of recommendation, from Assistant Principal, Acacia Middle School, undated
Letter of recommendation dated July 26, 1996
Character reference dated May 15, 1997
Character reference dated May 23, 1997
Copy of job assignment change dated June 24, 1997
Copy of award, Employee Excellence
Thank you note from Drama class, undated
Letter of recommendation dated May 30, 2000
Copy of evaluation report dated June 13, 2000
Letter from Pastor, Our Lady of the Valley Catholic Church dated August 11, 2000
Sunday offering envelope
Copy of police record check dated August 14, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     890420 - 890515  COG

 Period of Service Under Review :
Date of Enlistment: 890516               Date of Discharge: 920415

 Length of Service (years, months, days):

         Active: 02 11 10
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 34

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.47 (3)    Behavior: 2.93 (3)                OTA : 2.47

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 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 :

911103:  NJP for violation of UCMJ, Article 111: Drunken or reckless driving on 0007, 1Nov91.
         Award: Forfeiture of $222 per month for 2 months, restriction for 15 days. No indication of appeal in the record.
911202:  Medical evaluation: Actual offense: DUI, BAC .15. Recommendation: Level II.

911211:  Retention Warning: Advised of deficiency (Formally evaluated as a drug or alcohol abuser), notified of corrective actions: complete Level II Alcohol Abuse Program, and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

920228:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Random urinalysis 8Feb92. Commanding officer recommended separate via VA hospital. Comments: Fair performer. Stands watch underway and in port in a professional military manner. SNM was currently enrolled in a command Level II Alcohol Treatment Plan, awaiting non-residential counseling at SUBASE Bangor CAAC. Due to nature of offense, not recommended for submarine service or future Naval service. SNM will be transferred to Submarine Group NINE for processing for discharge. Applicant awaiting civilian trial for charges of DWI committed on 31Oct91.

 920228:  NJP for violation of UCMJ, Article 112A: Wrongfully use, possession, etc of controlled substance on 8Feb92, to wit: THC.
         Award: Forfeiture of $440 per month for 2 months, restriction and extra duty for 60 days, reduction to MMFA. No indication of appeal in the record.
920304:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Random urinalysis 8Feb92. Commanding officer recommended separate via VA hospital. Comments: Fair performer. Stands watch underway and in port in a professional military manner. SNM was currently enrolled in a command Level II Alcohol Treatment Plan, awaiting non-residential counseling at SUBASE Bangor CAAC. Due to nature of offense, not recommended for submarine service or future Naval service. SNM will be transferred to Submarine Group NINE for processing for discharge. Amended DAAR submitted upon member's submarine disqualification.

920305:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the drug abuse as evidenced by your service record.
920305:          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. Applicant understood he was being considered for an administrative discharge by reason of misconduct due to drug abuse and commission of a serious offense.
920306:  Drug and Alcohol Abuse Evaluation: Applicant appears to be a drug abuser and alcohol dependent. Recommend separation.

920311:  Substance Abuse Evaluation: Applicant found dependent on alcohol and not dependent on marijuana.

920324:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and commission of a serious offense.

920402:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 920415 under other than honorable conditions for misconduct due to commission of a serious offense (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).

 The applicant’s first issue states that his discharge was inequitable since it was based on “two isolated incidents, neither of which were severe enough to warrant an “other than honorable” discharge.” Both of the offenses the applicant was found guilty of, violation of UCMJ Article 111 and 112a, are serious military offenses. While the applicant may feel they are not severe enough to warrant an other than honorable discharge, each offense the applicant was found guilty of may bring a punitive discharge at court martial. Relief based on inequity is not warranted.

The applicant’s second issue states: “Only two offenses in almost three years of honorable service. I served my country well with almost three years of honorable and faithful service with no other offenses.” The applicant was found guilty of violation of UCMJ Article 111, drunken or reckless driving, and Article 112a, wrongful use, possession, etc, of a controlled substance, on two separate occasions. The negative aspects of the applicant’s service clearly outweigh his positive contributions. An other than honorable discharge accurately characterizes the applicant’s service. Relief is denied.

The applicant’s third issue states: “Excellent record as a Seaman except for these two incidents. My service records will substantiate the fact that I was a good sailor and served with pride.” The applicant’s otherwise creditable service was marred by two NJP’s for serious military offenses. The negative aspects of the applicant’s service outweigh his positive contributions. The other than honorable discharge accurately characterizes the applicant’s service. Relief is not warranted.

The applicant’s fourth issue highlights his job performance and states he has fulfilled his civic responsibilities by serving jury duty. The Board found the applicant’s employment and character references commendable. The applicant’s service record details problems with alcohol and drugs while on active duty. The applicant failed to provide detailed documentation to addresses his sobriety. Relief is not warranted.

The applicant’s representative, VFW, contends that had the applicant’s alcohol dependence been discovered following his second NJP would not have occurred. Contrary to the representative’s issue, the Board found the applicant was referred to Level II following his first NJP. The applicant’s record demonstrates an inability to conform to the standards required of service men and women. Relief is not warranted.

 The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.











































Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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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