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NAVY | DRB | 2003_Navy | ND03-01318
Original file (ND03-01318.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND03-01318

Applicant’s Request
The application for discharge review was received on 20030805. The Applicant’s surviving spouse request the characterization of service received at the time of the servicemember’s discharge be changed to honorable. The surviving spouse requests a documentary record review. Civilian Counsel was listed as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514. 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

 Issues submitted by Applicant’s counsel/representative.

“1. Whether or not the Navy had sufficient evidence to Applicant from the Navy?
2. Whether the military should have discharged Applicant with an Under Than Honorable Conditions Discharge?
3. Whether the Navy followed appropriate Navy Regulations before discharging Applicant?
4. Whether Applicant should have been medically discharged from the military with an Honorable Discharge?
5. Whether the Navy proved that Applicant’s use of alcohol prevented her from performing her duties in the Navy.
6. Whether the Navy rushed to judgment in pursuing a discharge?
7. Whether the Navy provided Applicant with proper medical treatment of her alcoholism?
8. Whether the Navy provided proper medication to Applicant for treatment of her alcoholism?
9. Whether Applicant was discharged from the military not because of her failure to be able to perform her duty but rather because she used alcohol.
10. After Applicant wrote letters to Federal and state Government officials, why did the Navy not discharge her in that it claimed that she could not perform her duties?
11. What rehabilitation did the Navy offer Applicant after her diagnosis of acute intoxication?
12. Whether medical records support the Navy’s claim that Applicant was an alcoholic incapable of performing her duties.
13. What did Applicant do in the two months being diagnosed with acute intoxication that warranted her discharge with an Under Other than Honorable Conditions Discharge.
14. Whether Applicant is entitled to discharge as the result of a service connected disability?
15. What disciplinary action was taken against Applicant because of her alcoholism prior to her discharge?
16. Whether any Navy officer in her command ever observed her incapacitated because of her alcoholism?
17. Whether Applicant was given the opportunity to confront her enlisted accusers?
18. Whether Applicant was given competent and effective counsel to defend her?
19. Whether Applicant confessed to being an alcoholic while under duress?
20. What justified Applicant being given an Under Other Than Honorable Discharge?
21. Whether Applicant was discriminated against because of her sex and discharged from the navy?
22. Whether Applicant was given any counseling for the marriage problems which she told the Navy was the reason she used alcohol?
23. Whether the Navy members who purchased alcohol for Applicant were discharged from the Navy and if so what were their
discharges and if they were not discharged what was the reason?
24. Whether or not a deceased military member should have her
discharge upgraded for serving her country honorably in life?
25. Whether or not Applicant was entrapped by the Navy Police?
26. What medical treatment did Applicant receive for her liver problems prior to her discharge?
27. Whether appropriate medication was given to Applicant
when she was unable to take antabuse.
28. Whether Applicant was ever given a full medical examination prior to her discharge and what were the results of the evaluation in
relation to alcohol abuse?
29. What did ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Certificate of Marriage
Applicant’s death certificate
Counsel’s narrative letter
Letter from Applicant’s parents
Letter from D_ H_
Letter from M_ M_
Letter from R_ M_

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):

          Inactive: USNR (DEP)     870213 - 870216  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 870217               Date of Discharge: 881014

 Length of Service (years, months, days):

         Active: 01 07 25
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

Education Level: 12                        AFQT: 50

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks Found in the service record

 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 :

871023:  Discharged from NAVALREHCEN, Pearl Harbor after six week inpatient treatment. Diagnosed with alcohol dependence.

871023:  Retention Warning: Advised of deficiency (completed alcohol dependence rehabilitation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

871203:  NJP for violation of UCMJ, Article 111: Operate a vehicle while drunk and caused vehicle to injure another.
         Award: Forfeiture of $329.00 per month for 2 month(s), restriction for 60 days, reduction to AR. No indication of appeal in the record.
871203:  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 due to alcohol abuse rehabilitation failure.
871208:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
880113:  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 other than honorable conditions.

880204:  NJP for violation of UCMJ, Article 134: Incapacitated for duty on 880201.
         Award: Forfeiture of $200 per month for 2 month(s), restriction for 60 days. No indication of appeal in the record.
880216:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and due to alcohol abuse rehabilitation failure.

880614:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

880713:  CNMPC directed Applicant’s discharge be suspended for 12 months.

880714:  Commanding Officer reported that Applicant is no longer on legal hold for court-martial of U.S. vs. R_. Recommended that separation be suspended.

880827:  Admitted to Tripler Army Medical Center for acute alcohol intoxication. BAC of 0.374.

880930:  Applicant notified of intended recommendation for intent to execute suspended discharge.

881004:  Applicant advised of rights and having declined to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of documents supporting the discharge.

881007:  NJP for violation of UCMJ, Article 86: Failure to go to place of duty.
         Award: Restriction for 5 days. No indication of appeal in the record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19881014 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 1, 2, 4, 5, 9, 13, 14, 15, 20, 21, 23, 29. A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions for the commission of serious offenses and the failure to complete alcohol rehabilitation. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects her disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. The Applicant’s diagnosis of alcohol dependence does not mitigate her misconduct. Administrative separation for misconduct takes precedence over discharge for other reasons. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

Issues 3, 6, 7, 8, 10, 16, 17, 18, 19, 22, 25, 26, 27, 28. The Board’s regulations limit its review to a determination on the propriety and equity of the discharge. The allegations that the Applicant was treated unfairly by the Navy, denied the exercise of her rights pending administrative separation, or denied proper medical care do not refute the presumption of regularity in this case. Relief denied.

Issues 11, 12. The Applicant successfully completed an inpatient alcohol rehabilitation program but failed to complete the necessary aftercare steps, evidenced by her continued use of alcohol. After the inpatient treatment, the Applicant, reverting to pre-rehabilitation behavior, required hospitalization at Tripler Army Medical Center for acute alcohol intoxication with a BAC of 0.374. On another occasion her use of alcohol led to the commission of a serious offense for which she was awarded nonjudicial punishment for violation of Article 134 of the UCMJ. The Applicant’s diagnosis of alcohol dependence and failure to complete alcohol rehabilitation treatment are clearly documented in the record, and further treatment was not required. Relief denied.

Issue 24. 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 inequity must have existed during the period of enlistment in question. No such error or inequity 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. Relief denied.

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 " 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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