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NAVY | DRB | 2002_Navy | ND02-00109
Original file (ND02-00109.rtf) Auto-classification: Denied


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

ex-ICFN, USN
Docket No. ND02-00109

Applicant’s Request
The application for discharge review, received 011017, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to for convenience of government. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020620. 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, as submitted

1. I respectfully request that Navy review my discharge and consider it for an upgrade to Honorable. I feel that the entire time I spent in the Navy should not be judged on a couple of incidents for which I was punished. During the preliminary investigation for my DUI offense I was encouraged by several chief petty officers that this incident was a "one time deal" and that it would not negatively impact me getting on with my Navy career. The punishment awarded at mast was difficult for me to deal with because I let my emotions take over rather than be more accountable for my behavior. At that time, I knew I had a lot going for me as I was selected for promotion to E-5 and had also been selected to attend the much sought after C school for Closed Circuit TV. I was optimistic that my overall performance would be looked at favorably and that my navy career was salvageable. When I had completed about 95% of my extra duty my only sister and her two children were in an automobile accident on December 7, 1990. My sister died at the scene and her children were air evacuated to a hospital because of their injuries. I was granted emergency leave to aid my parents and help them in the grieving process. Upon return from leave on January 2, 1991 I resumed my extra duty (2 days from completion) but I was an emotional wreck and was having a difficult time dealing with my sisters untimely death. Although drug/alcohol counseling had been directed by the command, no significant grief or psychological treatment for stress was given. The loss of my sister and the difficulties my parents were experiencing caused my stress level to be at the breaking point I did not get into Level III treatment until March 1991, a five month delay. By command admission, I should have been admitted to this program within 1-2 months after my mast. Timely entrance into the program may have precluded additional problems for me. I feel that by not having the Level III in a timely manner it may have left me vulnerable to a path that I could not correct on my own. Subsequent to my return from emergency leave, my parents were running into several obstacles in their attempt to adopt my nieces. Being in Guam, I felt helpless to assist them in this endeavor. I inquired about submitting a request for a temporary humanitarian assignment but was informed by command personnel that my request would be denied. I believe that strong consideration should be given to the positive aspects of my military record and service. I was a dedicated hard working sailor who earned promotions based on observed and documented performance.

2. My average conduct and efficiency rating/behavior and proficiency marks were good as reflected my Enlisted Performance Record. A draft of my performance evaluation for the period ending 92JAN 31 reflects the observations by three of my immediate supervisors. It is noted that there was no mark below 3.4 (Document 1).
A Memorandum dated 31 January 92, signed by LT S_ J. H_, USN and appended to the first final performance evaluation for the period ending 92JAN31, LT H_ wrote "...the marks forwarded are an accurate reflection of her worth to us." The attached Enlisted Performance Evaluation Report reflects a handwritten comment by the Executive Officer to LT H_ stating "...these" marks are too high - the Captain wants these to be legitimately adverse (some 2.8's or lower)." (Document 2).

A Memorandum dated 4 February 92, signed by LT H_, indicated "I still consider it an accurate reflection of her performance in the department." (Document 3).
A letter dated 10 February 92 from the Commanding Officer forwarded to me the final Enlisted Performance Evaluation Report for the period 91 Feb 21 to 92 Jan 31. Appended to this evaluation I indicated "I was never afforded the counseling by my division officer" and that "According to statements in my medical record by a Navy psychiatrist stress was the reason I may not have met your expectations." (Document 4).

The Enlisted Performance Evaluation block 28 (Rating knowledge Performance) which I signed reflected a mark of "4.0". However, Page 9 (Enlisted Performance Record) reflects a mark of "3.4: for this trait (Document 5)
I rom my first evaluation until separation I feel that I was an above average performer. During the Proceedings of Administrative Board (page 7) one supervisor commented " ...I can average her between 3.7 and 3.8. She knows and understands her job. She had no problem in performing her duties and accomplishing her job ... she did her job well... she controlled and separated her duties and responsibilities from her personal problems... if I were to count every mistake or infraction a sailor did, this base would probably be empty." Another stated "...I observed the RESP as a good worker. She came to my shop after completing the Level III in-patient treatment ... was really motivated and a very good tech." Others who had direct knowledge of my ability felt the same way although my last evaluation seems to me to have fallen prey to command pressure to change my true observed traits.

My record of promotions showed I was generally a good service member. Just prior to my first offense I learned that I was selected for promotion E-5. Attaining this achievement in less than two years service reflects that my performance was equal to or better than a majority of my peers. I also completed five University of Maryland courses, four of which I earned the grade of "A" and one "B." I was a highly motivated sailor with high expectations militarily and academically.

3. I have been a good citizen since discharge. From my discharge on February 12, 1992 to the present, I have not committed any offense related to the use/abuse of alcohol or any other civil offense that would reflect discredit to others or myself. At no time since leaving the Navy have I ever expressed thoughts of suicide or homicidal ideation. Nor have I had any psychotic episodes that would indicate I am not mentally competent and responsible for my behavior. The past seven years, I have been able to assist my parents in the care and well being of my nieces. Both they and I deeply miss their mother since her death as a result of her automobile accident on December 7, 1990. Letters of recommendation as to my character are contained in Documents 6 through 8. Local Police agency background checks are contained in Documents 9 and 10. A copy of my DD 214 is contained in Document 11.

4. My record of Non-judicial Punishment indicates two offenses:

FIRST OFFENSE (Time in Service 2 years):

21 November 1990         Commanding Officer's Non-judicial Punishment
 Violation of Article 111, UCMJ - DUI. on 6 October 1990
Reduced to ICFN - Suspended for six months.
Loss of 1/2pay for two months
45 days Restriction
45 days Extra Duty
SECOND OFFENSE:

20 February 1991         Commanding Officer's Non-judicial Punishment
 Violation Article 85, UCMJ - Unauthorized Absence
On 26 January 1991
Reduced to ICFN
I accepted the punishment awarded for my first offense. I believe that my conduct at the time of the offense was an anomaly and not characteristic of my normal conduct and behavior. As a result of the second offense, I lost my position as Department Supply Petty Officer (a prestigious position for a junior enlisted person) and reduced to ICFN. This action, coupled with the stress over losing my sister; and the seemingly lack of command understanding from my perspective literally played a role in my increased emotional and stress level which was a significant factor in the loss of my self-esteem.

5. My ability to serve was impaired because of family problems. The lack of sensitivity and support within the chain of command when I returned from emergency leave as the result of the death of my only sister on December 7, 1990 had a negative impact on me. All my life my father, a navy retiree, reminded me on more than one occasion that the navy takes care of their own in times of death and family problems. When I return from emergency leave on January 2, 1991, 1 resumed the extra duty awarded as a result of CO's NJP on November 20, 1990. At that time, or subsequently, no grief counseling or outward expression and support by my command during this traumatic time in my life was offered. My parents and I were well aware that my sister was a victim of domestic violence on several occasions. The Pasco County state attorney's office was supporting her efforts to bring forth charges on the biological father of her two children; however all charges were dropped after her death because her children were too fragile to testify in the trial scheduled for December 10, 1990. My parents immediately initiated the adoption; process to keep them from being in an abuse environment. It was extremely difficult for me to lend them the family support they needed because of my geographical location. I feel that my family situation and the lack of command support and understanding contributed to my negative attitude and behavior.

 6. The Commanding Officer, NCTAMS WESTPAC, ignored the finding of the Administrative Board by indicating to CHNAVPERS that I did "indeed have a diagnosed personality disorder." The Board, by a vote of 3 to 0 stated "DID NOT have a diagnosed personality disorder." The medical diagnoses prior to separation described me as "borderline personality disorder" yet no further exploration or concern for my well being was undertaken. I feel that the CO NCTAMS GUAM put pressure on the naval hospital to seek a general discharge rather than look into treating me for psychiatric trauma acerbated by the loss of a close family member.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Copy of Draft, Enlisted Performance Evaluation Report for the period ending 92Jan31 reflecting observations by three of my immediate supervisors (2 copies)
Copy of memorandum from Head, Electronics Maintenance Department (60) dated 31Jan92, Subj: Evaluation ICO ICFN (applicant) (2 copies)
Copy of memorandum from Head, Electronics Maintenance Department (60) dated 4Feb92, Subj: Evaluation ICO ICFN (applicant) (2 copies)
Copy of CO, U.S. Naval Computer and Telecommunications Area Master Station WESTPAC letter 1616 dated 10Feb92, subj: Performance Evaluation Report (2 copies)
Copy of letter from applicant to Commanding Officer dated February 17, 1992 (2 copies)
Copy of Enlisted Performance Record, service record page 9 ICO (applicant)(SSN) (2 copies)
Original letter of reference dated September 5, 2001 and copy
Original letter of reference dated September 8, 2001 and copy
Original letter of reference dated September 12, 2001 and copy
Original background check completed by Dade City PD, Dade City, Fl dated October 21, 2001 and copy
Original local arrest record response completed by Pasco County Sheriff's Office, Pasco County, FL dated October 10, 2001 and copy

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     881028 - 881120  COG

 Period of Service Under Review :
Date of Enlistment: 881121               Date of Discharge: 920212

 Length of Service (years, months, days):

         Active: 03 02 22
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

 Education Level: 14                        AFQT: 48

 Highest Rate: IC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.52 (5)    Behavior: 3.20 (5)                OTA : 3.68

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, MUC, OSR

 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 :

881122:  Applicant briefed on Navy's policy of drug and alcohol abuse.

 901006   Applicant apprehended for DWI.

901007:  Applicant's driving privileges on Anderson Air Force Base are preliminarily revoked.
901121:  NJP for violation of UCMJ, Article 111: Drunk driving on 6Oct90.
         Award: Extra duty for 45 days, reduction to ICFN. Reduction suspended for 6 months. No indication of appeal in the record.

901123:  Retention Warning: Advised of deficiency (CO's mast held on 21Nov90, violation of the UCMJ, Article 111.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
910211:  Vacate suspended reduction to ICFN awarded at CO's NJP dated 21Nov90 due to continued misconduct.
910220:  NJP for violation of UCMJ, Article 86: Failure to go on 26Jan91, to wit: 0800, extra duty muster.
         Award: Reduction to ICFA. Reduction suspended for 6 months. No indication of appeal in the record.
910304:  Applicant to Level III treatment.

 910412:  Applicant completed Level III treatment. Discharge diagnosis: Axis I: Alcohol dependence, in partial remission, nicotine dependence; polydrug abuse by history. Axis II: No personality disorder. Axis III: Upper respiratory tract infection. Spontaneously resolved--probably viral; infected epidermal cyst, resolved with surgical intervention; acne vulgaris, responding to topical medication. Axis IV: Acute stressors: Death of sister within the past three months. Axis V: Highest global assessment of functioning during the past year 75, current level 75.
910416:  Retention Warning: Advised of deficiency (Apprehended for DWI on base 6Oct90.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
910826:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of convenience of the government due to a personality disorder, alcohol abuse rehabilitation failure and misconduct due to the commission of a serious offense as evidenced by two nonjudicial punishments for violations of the UCMJ, Articles 111 (drunk driving) and Article 86 (failure to go).
911004:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. Applicant objected to separation.
911015:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had a personality disorder, and was an alcohol abuse rehabilitation failure and committed a serious offense, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

911216:  Commanding Officer recommended discharge under other than honorable conditions by reason of personality disorder, alcohol abuse rehabilitation failure and misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): (1) Recommendations: Upon full review of all evidence, testimony, and records of this case, I find that the Respondent has a diagnosed personality disorder; is an alcohol abuse rehabilitation failure; and has committed misconduct due to commission of a serious offense. Based on these findings, it is my recommendation that the Respondent be separated from the Naval Service with a other than honorable discharge.

 (2) Comments: The Respondent arrived at this command September 1989, as a 30 yr. old woman, having completed IC "A" school, and having been in the U.S. Navy nearly one year. She advanced to IC3 in March of 1990 and attended the Navy Alcohol, Drug and Substance Abuse Program (NADSAP) in August of the same year.

(a) Two months later the Respondent was found driving while intoxicated on Andersen Air Force Base, Guam. While going through administrative steps with Air Force Security ' she was belligerent and continually conducted herself in a manner discrediting to the Naval Service. As a result, her base driving privileges were revoked. The following month I found her guilty of Driving While Intoxicated at Captains Mast and imposed non-judicial punishment to include a suspended reduction in rate to E-3.

(b) In December 1990, the Respondent began screenings with the Command DAPA and Naval Hospital Guam officials which ultimately lead to her being referred to the Level III alcohol abuse rehabilitation program. Prior to attending the Level III treatment her suspended reduction in rate was vacated making her an E-3.

(c) The Respondents suspension was vacated due to the her inability to report to her appointed place of duty and satisfactorily complete the extra duties awarded to her at Captains Mast. The Respondent entered Level III treatment on 4 March 1991 and successfully completed inpatient treatment 12 April 1991. However, the Respondent never admitted to having a drinking problem and quickly resumed drinking. Understandably the Respondent failed to comply with her aftercare program and continued to abuse alcohol. She is clearly an example of Alcohol Abuse Rehabilitation Failure.

(d) Throughout her tour the Respondent has displayed emotional instability. While her supervisors find her to be an adequate worker, she is known to have extreme emotional outbreaks and requires extra attention from her chain of command. In one instance she became offensive and belligerent with a Galley Master at Arms for asking her to leave because she was improperly dressed. On numerous other occasions she has gone into fits of rage or sobbing, when her wishes are not granted. Finally in August 1991 the Respondent was referred to the Naval Hospital for examination by the Psychiatric Department. After a thorough examination, the medical experts found her to be in alcohol rehabilitation failure as well as having a personality disorder. In fact, they felt the respondent was a danger to herself as long as she remained on active duty, and recommended immediate separation.

(e) In final consideration of the above evidence; I find that the Respondent does indeed have a diagnosed personality disorder; is an alcohol abuse rehabilitation failure; and has committed misconduct due to the commission of a serious offense, specifically driving while intoxicated. Further, I recommend that the Respondent be separated from the Naval Service with an other than honorable discharge. While I recommend a more strict judgement than given by the Board Members I feel it is an appropriate action. For it is my sincere hope that we not only make fair judgement on the Respondent's actions, but we maintain the historically high standards set by members of the Naval Service.
920113:  BUPERS directed the applicant's discharge under honorable conditions (general) 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 920212 under honorable conditions (general) 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).

Issues 1 & 2: The applicant requested her discharge be upgraded to honorable based upon her observed and documented performance evaluations. The Board disagrees with the applicant’s assertion that her overall service record warrants a discharge under honorable conditions. The receipt of favorable performance evaluations during the applicant’s enlistment does not guarantee her an honorable discharge. When a sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable. A discharge characterization of under honorable conditions (general) is warranted when significant negative aspects of a sailor’s conduct or performance of duty outweigh the positive aspects of the sailor’s military record. The applicant’s service was marred by two incidents resulting in nonjudicial punishment (NJP). In addition, the applicant was also an alcohol rehabilitation failure. The applicant’s DWI and alcohol rehabilitation failure both qualified her for a discharge characterization of general, with the reason being misconduct due to commission of a serious offense. The Board determined the applicant’s overall performance and conduct falls short of that required for an honorable characterization of service. Relief denied.

Issue 3: The applicant’s discharge characterization accurately reflects her service to her country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to her discharge. Relief denied.
Issues 4 and 5: The applicant states that her loss of self esteem and the lack of sensitivity and support within her chain of command contributed to her negative attitude and behavior. The applicant was justifiably held accountable for her misconduct. There is nothing in her record nor did she provide any evidence to show that there were mitigating circumstances that would excuse her behavior. The Board determined the discharge was proper and equitable. Relief denied.

Issue 6: When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB does not consider the circumstances surrounding the applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given (or not given) to the applicant to be of a sufficient nature to exculpate the applicant’s misconduct due to a commission of a serious offense. Relief denied.

 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 " 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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