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NAVY | DRB | 2001_Navy | ND01-01013
Original file (ND01-01013.rtf) Auto-classification: Denied


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

ex-BU2, USN
Docket No. ND01-01013

Applicant’s Request
The application for discharge review, received 010803, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020307. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. My general discharge under honorable conditions was because I failed a alcohol abuse rehabilitation program and today I am sober.

 2. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the appellant of an upgrade of his General, Under Honorable Conditions discharge, to that of Honorable, with a change of his RE Code from that of 4 to that of l, allowing for equitable relief. The records reflect the FSM served in the United States Navy from October 16, 1977 to April 15, 1988 with a narrative reason for separation of alcohol abuse - rehabilitation failure. The FSM submits one personal statement, noting that he has been sober since December 3, 1995 and seeks the equitable relief as noted so that he may obtain enlistment in the Naval Reserves Sea Bees Program. Also in support, are two character references attesting to the sobriety of the FSM for at least five and half years and giving every indication that it will continue. As the Re-Code is not an issue that the Discharge Review Board can address we ask that once consideration is given to the upgrade request that this issue be referred to the Naval Board for Correction of Military Records, for their review. In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that applicant was discharged differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration that full consideration be given to a change of the current discharge on the basis of equity in accordance with SECNAVINST regulations.
 We ask for the boards careful and sympathetic consideration of all 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
Letter from Director of Services, Crossroads Managed Care Systems, Inc re applicant's current substance use status dated July 2, 2001
Letter from applicant, undated
Letter from Naval Reserve Recruiter
Note from applicant and Pastor of Sacred Heart Church

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        710621 - 750514  HON
                  USN                       750515 - 810611  HON
         Inactive: USNR-R                  710408 - 710620  HON

 Period of Service Under Review :
Date of Enlistment: 810612               Date of Discharge: 880415

 Length of Service (years, months, days):

         Active: 06 10 04
         Inactive: None

 Age at Entry: 27                          Years Contracted: 6 (21 months extension)

 Education Level: 10                        AFQT: UNKNOWN

 Highest Rate: BU2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (8)    Behavior: 3.40 (8)                OTA: 3.15

Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (4), NER, NEM, GCM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

830124:  Applicant briefed on Navy policy on drug and alcohol abuse.

830127:  NJP for violation of UCMJ, Article 92: Derelict in the performance of his duties on 16Dec82, to wit: negligently failed to use proper procedures required to install two fire rated doors as it was his duty to do thereby causing the doors to be damaged beyond repair, violation of UCMJ, Article 108: Destroy by improper use of power tools and improper installation procedures two fire rated doors on 16Dec82, a value of $252.00.
         Award: Forfeiture of $100 per month for 2 months. No indication of appeal in the record.
830614:  Counseling: Advised of deficiency (Letter of substandard service), notified of remedial action required.

830711:  Counseling: Advised of deficiency (Letter of substandard service re: leadership and performance have not been maintained at the level required of a petty officer), notified of remedial action required.

860505:  Applicant to Naval Alcohol Rehabilitation Center, Miramar for treatment.

870611:  Applicant extended enlistment for 21 months.

870721:  Applicant advised that he does not meet the weight/body fat requirements.

871119:  NJP for violation of UCMJ, Article 111: Driving a passenger vehicle while impaired by an over indulgence of an intoxicating liquor.
         Award: Restriction for 30 days. No indication of appeal in the record.
871130:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
871208:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
871218:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

880415:  Applicant did not elect to attend alcohol abuse treatment at a VA treatment facility.
880422:  Commanding officer directed discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): BU2 (applicant's) administrative separation came about as a result of driving while under the influence of alcohol. This service member has a long history of alcohol abuse. The member successfully completed NDRC level III treatment program in May 1986. An administrative board concluded with a recommendation for discharge under general conditions. Pursuant to reference (b), BU2 (applicant) was discharged on 15 April 1988. Prior to discharging member, VA treatment was offered and documented via page 13 administrative remarks (Encl. 5). The delay encountered in processing BU2 (applicant's) discharge was due to problems surrounding his physical examination.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 880415 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).

 Issue 1 states: “My general discharge under honorable conditions was because I failed a alcohol abuse rehabilitation program and today I am sober.” The NDRB is chartered to review the discharges of former Navy and Marine Corps service members for propriety and equity, and decide if a change in the character or reason for discharge is warranted. The Board determined that the under Honorable conditions (General) discharge assigned in this case was properly and equitably assigned. The fact that the applicant has been alcohol free for 5.5 years is not sufficient reason to upgrade his discharge. Relief is not warranted.

 Issue 2 states: “ After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the appellant of an upgrade of his General, Under Honorable Conditions discharge, to that of Honorable, with a change of his RE Code from that of 4 to that of l, allowing for equitable relief.” The NDRB disagrees. The General discharge accurately characterizes the applicant’s service. The applicant’s service was marred by two separate NJP’s, involving serious violations of the UCMJ in addition to his alcohol rehabilitation failure. In reference to changing the reenlistment code (RE code), the NDRB has no authority to change an RE Code or make recommendations to permit reentry into the naval service or any other of the Armed Forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. Reenlistment policy of the naval service is promulgated by the Commander, Navy Personnel Command, Pers-814, 5720 Integrity Drive, Millington, TN 38055. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Relief, is therefore, denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant failed to provide substantial documentary evidence to demonstrate continuous sobriety, positive volunteer community service, employment history, and clean police record. Relief is not warranted.

The applicant 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 recommended .
Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS 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 " 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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