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NAVY | DRB | 2003_Navy | ND03-01083
Original file (ND03-01083.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND03-01083

Applicant’s Request
The application for discharge review was received on 20030604. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. Subsequent to the application for review, the applicant obtained representation from J_ F_ of the Veterans Administration.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20040525. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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, as stated

 Applicant’s issues, as stated on the application:

“Attached is all the information including all issues which are listed on the second document and listed A thru H. I am respectfully requesting to have my discharge and or re-enlistment code up-graded so we can review the possibility of my re-enlisting in military service and serving our great nation with honor.”

 Dear Sirs and/or Madams:

First allow me to thank the members of the Board for taking the time to review my request for a discharge and re-enlistment code upgrade. I am acutely aware of the seriousness of my request and its importance. During my tour of duty in the Navy I committed an error. I am not refuting this. I am, at this most crucial time in our history, requesting that my discharge be upgraded. It would be a great honor to re-enlist in the Armed Forces in defense of our country s values in this day and age. The following are issues that I am requesting to be considered in your decision making.

a) I feel my discharge was inequitable as it was based on one isolated incident during my 28 month tour with no other adverse action.

b) I am an upstanding citizen. I have been gainfully employed since my departure from the Department of the Navy. I do not have, nor have I had, any blemish on my records (as you will see by the attached police reports).

c) I have enclosed reference letters from various individuals whom have known me throughout the years including a letter written by my prior supervisor, all of whom will attest to my character.

d) There were no prior or post incidents, my record was, and is, exemplary which is inconsistent with a diagnosis of alcoholism. As we all know alcoholism is a progressive illness which doesn’t surface from one day to the next, there are clear cut signs and in most cases, a predisposition with symptoms before and during the manifestation of alcoholism.

e) One of the treatments suggested for the diagnosis of alcoholism was the medication anti-buse. My refusal was based on my, then and now, strong belief against putting drugs in my system. At the risk of sounding as if though I was “in denial” of my condition, it was a matter of conviction, that foreign substances should not be put into the body, though alcohol consumption would be a contradiction to the statement. Alcohol is legal and sold on and off military installations, certainly a clear distinction from anti-buse. My consumption of alcohol was purely recreational and occasional.

Had it been the contrary I would venture to say that there may have been more incidents in 28 months.

f) Failure of program and subsequent discharge was based on poor attendance and not on recurrent alcohol incidents or matters related to alcohol abuse. In a word there were no disciplinary issues before or after the one in question.

g) Language used in medical report was somewhat misleading (though inadvertent on the part of the doctor). During an interview I told the doctor that I had fallen asleep twice after a night out with fellow sailors. The doctor described these as “blackouts” which I believe is flawed language. I merely fell asleep. The doctor categorized it as blackouts a term used to describe severe alcoholism symptoms which was not the issue in my case.

h) At the age of 19 my understanding of legal procedures or the ramifications of same were somewhat limited which I think every one would agree. The future ramifications of these proceedings were not thoroughly understood by me given my age, naive ness and unfamiliarity with the legal system which I have never had any involvement with, before or after this incident to date.

Please review and consider all of the abovementioned factors when rendering a decision. I am respectfully requesting that my discharge be changed to that of an honorable discharge so that I may re enter the military service and serve my country proudly at this most crucial time in history.

Respectfully,

R_ S_ Jr. (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 Applicant dated May 25, 2003
Reference Letter from Applicant’s mother dated January 15, 2003 (2 pages)
Letter of Recommendation dated September 27, 2002
Letter of Support dated May 27, 2003
Letter of Support and Recommendation dated September 5, 2002
Employment Reference Letter dated July 18, 2002
Police Record Check dated February 21, 2001
Abstract of Driving Record
Copies from Service Record (22 pages)
Fax Cover Sheets (3 pages)
Letters from Applicant dated January 14, 2004 (2)
Copy of Resume (3 pages) and Original Resume (3 pages)
Copies of Certificate of Completion (Community Emergency Response Team) (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870514 - 870519  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 870520               Date of Discharge: 890721

 Length of Service (years, months, days):

         Active: 02 02 02
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12 1/2                    AFQT: 59

 Highest Rate: AWAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.40 (2)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

890202:  NJP for violation of UCMJ, Article 111: Operating a motor vehicle under the influence of alcohol, violation of UCMJ Article 92: Fail to obey a lawful order, to wit: SECNAVINST 1700.11C dated 860721 by wrongfully consuming alcoholic beverages.
         Award: Restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
890210:  Retention Warning: Advised of deficiency (Alcohol abuse as indicated by DUI incident on 890122), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
890328:  Director, CAAC evaluation indicates applicant was screened following a referral by LT(jg) T_ due to Driving Under the Influence (DUI), Blood Alcohol Count (BAC) .12%. Applicant appears to be an alcohol abuser as evidenced by Medical Officer evaluation, 2 blackouts, use interferes with safety (DUI), uses knowing it causes problems and drinking under age. He would benefit from a level II program.

890531:  Applicant referred to CAAC for evaluation of a suspected alcohol problem as PER OPNAVINST 5350.4A. CAAC recommended applicant for Level II Treatment. Applicant entered CAAC Level II group counseling program, and failed to complete the program due to failure to comply with the substance abuse treatment contract in that he did not attend the required meeting on 890524, nor did he attend the required meeting on 890525. Applicant’s attendance was terminated on 890526.

890606:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.
890608:  Applicant advised of his rights and having elected 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, the right to make a statement, and the right to a minimum of two working days to respond to the Notice of the Administrative Board Procedures Proposed Action.
890606:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.

890706:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890712:  Applicant certified understanding that he had been diagnosed by a physician as alcohol dependent and accepted a minimum of 30 days inpatient treatment at a VA hospital prior to separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19890721 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).

Issues a – f, & h. The Applicant feels that his discharge was inequitable as it was based on one isolated incident during his 28-month tour with no other adverse action. The Applicant’s discharge characterization accurately reflects his service to his country. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as other than honorable is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The applicant’s service was marred by the award of nonjudicial punishment (NJP) on one occasion for violations of the Uniform Code of Military Justice (UCMJ). The applicant’s misconduct included operating a motor vehicle under the influence of alcohol and failure to obey a lawful order by wrongfully consuming alcoholic beverages. Additionally the Applicant failed to attend the required meetings for the Level II Alcohol program and was discharged under other than honorable conditions by reason of misconduct due the commission of a serious offense and alcohol abuse rehabilitation failure. An upgrade to honorable would be inappropriate. Relief is therefore denied.

Issue g. The Applicant stated that the language used in the medical report was somewhat misleading concerning the doctor using the term “blackouts”. The Applicant was diagnosed by a competent medical authority concerning his alcohol abuse. The board presumes regularity in this issue. Therefore, relief is not warranted.

Normally, to permit relief, a procedural error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective
25 May 89 until 20 Aug 89, 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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