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NAVY | DRB | 2004_Navy | ND04-00052
Original file (ND04-00052.rtf) Auto-classification: Denied


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

ex-SKSA, USN
Docket No. ND04-00052

Applicant’s Request
The application for discharge review was received on 20031008. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant listed Military Order of the Purple Heart as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728. 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 4-1 that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Pattern of Misconduct, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

 Issue 1 : CONTENTION A

The character of discharge issued the Applicant was incorrect. All of the Applicant’s offenses were alcohol related. His first offense included a charge for “underage drinking”. (Exhibit 5, paragraph 5, Summary of Offenses) Alcohol abuse requires a discharge for Unsuitability Due to Alcohol Abuse. The characterization is usually
“General Under Honorable Conditions”. In accordance with Navy standards, the Applicant should have been offered rehabilitation and if not successful, discharged as unsuitable rather than for misconduct.

 Issue 2 : CONTENTION B

The Applicant’s discharge is improper and/or inequitable and should be recharacterized to Honorable because the Applicant should have been treated for alcohol abuse and attempts made at rehabilitation pursuant to current DoD directives.

1.
(a)      The medical screening for the administrative discharge and the Veterans Administration Medical Center Discharge Summary confirmed that the Applicant was “Psychologically Dependent on Alcohol”. (Exhibits 6 and 7)

(b)      The Applicant in his exit statement (Exhibit 5, paragraph 10) indicates that the chain of command was aware of his alcohol abuse.

(c)      The Applicant upon discharge enrolled in a Veterans Administration Medical Center alcohol rehabilitation program which he completed successfully. (Exhibit 7). Since completion of the treatment program, the Applicant has remained sober and has led a productive life. (Exhibits 8 thru 35)

2.       The Applicant’s chain of command did not take any steps to identify the Applicants alcohol abuse.

DOD directives require commanders to take specific steps in addressing incidents that are precipitated by alcohol abuse. The directive states: “Commanders now have an affirmative duty to identify problem drinkers and to place them in mandatory rehabilitation programs that may offer medical evaluation, detoxification, and professional and peer group counseling.” It further states that “Signs of potential or actual alcohol abuse include” deteriorating performance, errors in judgment, periods of absenteeism or being unfit for duty, and increasing or repetitive entries into service records, health records or military records relating to alcohol abuse. The chain of command had numerous opportunities to identify the Applicant’s alcohol abuse. The Applicant’s performance rating summary is attached as Exhibit 4 that shows a clear decline in performance.

3.       The Applicant was not offered rehabilitation.

Current directives have established a policy of preventing alcohol abuse, restoring to effective service individuals with problems attributable to alcohol abuse and humanely treating those who cannot be restored. The directives recognize that alcoholism is a disease that can be treated and that a servicemember should not be discharge for alcoholism unless(s)he does not actively cooperate in treatment programs. The individual then “may be determined to be unsuitable for further military service and may be administratively separated”. The Applicant’s case is a classic case for rehabilitation. His duty performance fluctuated as well as he was not able “to be at the appointed place at the appoint time” several times. However, the chain of command did not offer the Applicant any assistance with his drinking problem.

4.       The Applicant was discharged from service into a Veterans Administration Medical Center alcohol treatment program which he completed successfully. (Exhibit 7). Since completion of the treatment program, the Applicant has remained sober and has led a productive life. (Exhibits 8 thru 35)

 Issue 3 : CONTENTION C

1.       The Applicant’s evidence of a diagnosis by competent medical authority prior to discharge, his own statement, an alcohol related charge as part of his first offense and diagnosis and completion of the Veterans Administration Medical Center’s substance abuse treatment program is sufficiently credible evidence to establish that he had an alcohol abuse problem while in service an should have been discharged for alcohol abuse.

2.       Failure to reach this conclusion would violate due process and fundamental principles of administrative law because an adverse conclusion is inconsistent with decisions in which similar evidence has been accepted by the Boards to prove alcoholism.

 Issue 4 : CONTENTION D

The Applicant’s youth, inexperience, rural socialization and lack of adequate support system contributed significantly to his inability to cope with the difficult situations that confronted him in a relative short period of time. The Applicant lost his “buddy” during boot camp. His buddy was the only link to the world that he knew and stability during his training. The separation destabilized him. Navy Seal training was seen as a way to prove himself and establish his manhood. The failure to qualify for Navy Seal training further destabilized him and he started drinking to prove his manhood. The drinking continued as his way of belonging and establishing his mark within the group. The loss of his fiancee was the crowning blow that sent him into a tailspin. The chain of command responded with non-judicial punishment rather than counseling and alcohol treatment. The Applicant has shown that he more than likely would have responded favorably to rehabilitation had it been offered.
Issue 5 : CONTENTION E

1. The Applicant’s discharge is improper and /or inequitable and should be recharacterized to Honorable because Applicant should have been treated for alcohol abuse and attempts made at rehabilitation pursuant to DoD Directives.

2. The character of discharge issued the Applicant was incorrect. All of the Applicant’s offenses were alcohol related. His first offense includes a charge for “ underage drinking”. Alcohol abuse requires a discharge for Unsuitability Due to Alcohol Abuse. The characterization is usually “General Under Honorable Conditions”. In accordance with Navy standards, the Applicant should have been offered rehabilitation and if not successful, discharged as unsuitable rather than for misconduct .

3. In light of the evidence presented, the Board is requested to right a previous wrong and upgrade the applicant’s character of discharge to Honorable.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Disciplinary Review board letter, dated April 30, 2003. (3 pages)
Copy of DD Form 214
Applicant’s enlisted performance record
Arlington Annex Message Center to BUPERS, dated September 18, 92 (2 pages)
Applicant’s chronological record of medical care (4 pages)
Enrollment letter from Southern Nazarene University, dated July 28, 2003
Recognition of demonstrated standard of performance from Department of the Air Force, date June 1, 2002
Applicant’s civilian rating of record (2 pages)
Letter of recommendation from the president of Har-Son, Inc., undated
Letter of recommendation from O_ C_ Jr., undated
Letter of recommendation from J_ H_, undated
Certificate of recognition, dated Spring 2002
Applicant’s Honor Roll Certificate, dated fall semester
Associate in Science at Seminole State College, dated December 13, 2002
Applicant’s Report Card from Seminole State College
Acceptance letter, dated March 19, 2003
Applicant’s Report Card from Seminole State College
Form 50 (notification of personnel action)
Personal data brief (5 pages)
Special Recognition, dated Fall 2000
Certificate of Recognition, date Summer 2000
Character letter from M_ S_ H_, undated
Phi Theta Kappa Chapter acceptance letter, dated March 4, 2001
Who’s Who among students in American Junior Colleges, dated 2001-2002
United States Achievement Academy
Character reference from K_ P_ J_, dated May 16, 2000
Character reference from Target Stores, dated April 28, 2000
Character reference from manager of Foley Department Store, dated June 11, 1997
Character reference from C_ P_ (Loss Prevention Manager) Power Max, OfficeMax, Inc.
Character reference form Sheriff of Pottawatomie County, dated April 14, 2000
Character reference from the Personnel Director of the City of Tecumseh, Oklahoma, dated August 2, 2000
Applicant’s Civilian performance and promotion appraisal performance rating ( 5 pages)
‘Fill the boot’ a success in Tecumseh flyer

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890726 - 890906  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 890907               Date of Discharge: 921113

 Length of Service (years, months, days):

         Active: 03 02 06
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 58

 Highest Rate: SKSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (5)    Behavior: 3.12 (5)                OTA: 3.24

 Military Decorations: None

 Unit/Campaign/Service Awards: NEM, NDSM, SASM (2), SSDR

 Days of Unauthorized Absence: 5

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

890623:  Applicant briefed on Navy's policy of drug and alcohol abuse.

910403:  Applicant to unauthorized absence from 0730.

 910404:  Applicant from unauthorized absence on 2000 (1 day/surrendered).

910516:  Referral to Command DAPA. No indication of counseling. [Extracting from DAPA ltr dated 15 Sep 92].
910603:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 1000, on 910516, until 0030, 910517, violation of UCMJ, Article 92: Dereliction of duty; leaving the ship while in a fire party status, violation of UCMJ, Article 134: Drinking underage.
         Award: Forfeiture of $350.00 per month for 2 months, restriction and extra duty for 45 days, reduction to SKSR. No indication of appeal in the record.
910719:  Retention Warning from USS SAIPAN: Advised of deficiency (establishment of a record of minor disciplinary infractions and a patter of misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910823:  NJP for violation of UCMJ, Article 92: Violate a lawful restriction guidelines.
Award: Forfeiture of $100.00 for 1 month, restriction and extra duty for 10 days.
910928:  NJP for violation of UCMJ, Article 86: Miss 8 restricted men’s musters, violation of UCMJ, Article 92: Dereliction of the duty, to wit: sleeping during working hours.
Award: Forfeiture of $300.00 for 1 month, restriction and extra duty for 15 days.

 911010:  Retention Warning from USS SAIPAN: Advised of deficiency (established a record of minor disciplinary infractions and a pattern of misconduct), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 920803:  NJP for violation of UCMJ, Article 86: Unauthorized absence (21 hours).
 Award: Forfeiture of $300.00 per month for 1 month, restriction and extra duty for 15 days.
920824:  USS SAIPAN notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and by reason of misconduct due to commission of a serious offense.

920824:  Applicant advised of 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.

920915:  Substance Dependency/Abuse Evaluation: Applicant was found cooperative and psychologically dependent on alcohol. The Medical officer recommended that the Applicant receive residential rehabilitation at CAAC (Level III). Applicant found to use Alcohol knowing it causes other problems, loss of control and use interferes with responsibilities or safety.

920918:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and commission of a serious offense. Commanding Officer’s comments: SNM H_ (Applicant) has demonstrated no initiative to comply with the rules and regulations of the military. SNM H_ (Applicant) demonstrates no potential for further service and is a detriment to good order and discipline. Command DAPA made numerous efforts to assist SNM H_ (Applicant) in obtaining help, however SNM H_ (Applicant) refused to cooperate. Missing several appointments command is prepared to separate SNM H_ (Applicant) via VA Hospitalization for treatment. I strongly recommend that he be discharged under other than honorable conditions as soon as possible.

920928:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

921002:  Applicant to unauthorized absence at 0745, 921002.

921007:  Applicant from unauthorized absence on 1830, 921007 (5 days/surrendered).

921009:  NJP for violation of UCMJ, Article 86: Unauthorized absence for a period of 5 days.
 Award: Reduction in rate to SKSA, restriction and extra duty for 20 days.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921113 under other than honorable conditions for misconduct due to a pattern of misconduct (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. The Applicant contends that his problems in the Navy are alcohol related. While he may feel that his abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief on this basis is denied.

Issues 2-3. The evidence of record shows that the Applicant was given a referral to the Command Drug and Alcohol Program Administrator after his first nonjudicial punishment (NJP) proceeding on 16 May 1991. Further, the Commanding Officer indicates that, “Command DAPA made numerous efforts to assist (Applicant) in obtaining help, however (Applicant) refused to cooperate. Missing several appointments.” The Applicant was offered assistance and failed to cooperate. The evidence of record does not show that the Applicant should not be held accountable for his conduct. Relief denied.

Issue 4. 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. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

Issue 5. The Applicant contends his disciplinary problems were the result of “proving his manhood” because of the stress caused by “youth, inexperience, rural socialization and lack of adequate support,” loss of his “buddy,” and fiancée. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to ensure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable or general discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Issue 6. An Under Other Than Honorable Conditions discharge 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 five nonjudicial punishment proceedings for violations of Articles 86, unauthorized absence, 92 failure to obey and 134 for drinking underage. The Applicant was not processed for “Unsuitability Due to Alcohol Abuse,” but for a pattern of misconduct that is clearly documented. A service member’s alcohol abuse does not require separation due to “unsuitability due to alcohol abuse” or otherwise. While both current and past regulations directed alcohol abusers be identified and provided treatment as necessary, these regulations did not bar the administrative separation of those individuals who committed misconduct and were properly processed for reasons other than alcohol abuse. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. Representation at a personal appearance hearing is recommended but not required.


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 – A PATTERN OF MISCONDUCT.

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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