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NAVY | DRB | 2004_Navy | ND04-00345
Original file (ND04-00345.rtf) Auto-classification: Denied


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

ex- BM2, USN
Docket No. ND04-00345

Applicant’s Request
The application for discharge review was received on 20031216. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety 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 change. The discharge shall change to: HONORABLE/ALCOHOL REHABILITATION FAILURE, authority: MILPERSMAN, Article 1910-152 (formerly Article 3630550).




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated by his counsel:
“INTRODUCTION

J_ D W_ (Applicant), Former BM2 (SEAL), USN, requests this board to review his General Discharge from the United States Navy. As a basis therefor, he submits the following issues for review:

1. Per 32 CFR 724.902 (1), BM2 W_'s (Applicant's) discharge was improper in that it was the result of an error in fact, procedure and discretion at the time it was issued. Specifically, BM2 W_ (Applicant) was incorrectly sent to Level II Alcohol Rehabilitation treatment after only one alcohol incident.

2. Per 32 CFR 724.903 (a), BM2 W_'s (Applicant’s) discharge was inequitable as it was based upon policies and procedures that differ materially from those currently in effect, under which it is doubtful that BM2 W_ (Applicant) would have been discharged. Specifically, under current US Navy Drug and Alcohol Program (DAP) polices, BM2 W_ (Applicant) would not have been sent to Level II rehabilitation. Therefore, he would not have been a Level II failure and never would have been discharged.

3. Per 32 CFR 724.903 (b), at the time of issuance, BM2 W_'s (Applicant's) discharge was inequitable in that it was inconsistent with the standards of discipline in the US Navy in 2 respects:

a. A single alcohol incident off-base and off-duty should not have resulted in the discharge of BM2 W_ (Applicant).

b. A discharge characterization of General rather than Honorable based upon BM2 W_'s (Applicant's) military record was improper.

4. Per 32 CFR 724.903(c), a review of BM2 W_'s (Applicant's) service reveals that his discharge was inequitable and that relief is warranted.
FACTS

1. BM2 W_ (Applicant) enlisted in the United States Marine Corps on 23 MAY 1988 at 20 years old.

2. While in the Marine Corps, BM2 W_ (Applicant) complete the following military schools and courses (Please See Exhibits 1 to 10):

a. Machine Gunner School

b. Recon Marine School

c. Recondo Course

d. Scuba Course,

e. Diving Supervisor Course

f. US Army Ranger Course

g. US Army Basic Airborne Course

h. Scout Sniper School

i. Emergency Medical Technician and Combat Medical Training Course

j. HRST Master Qualification Course

k. NCO Basic Nonresident Program

3. Based upon this training and BM2 W_'s (Applicant's) hard work, he carried the following MOS’s while a Marine: Basic Infantry Man, Machine Gunner, Para/Scuba Marine and Scout Sniper. (Please See Exhibit 1).

4. During his tour of duty, BM2 W_ (Applicant) was assigned to the Third Reconnaissance Battalion, Third Marine Division.

5. 1 MAY 1991, he attained the rank of Corporal. (Please See Exhibit 11).

6. While a member of the Third Recon, BM2 W_ (Applicant) received a Letter of Recognition for his performance during a swim test, a Letter of Appreciation for assistance in the Ranger screening program and Meritorious Mast for his performance of the battalion’s Pre-Ranger course. (Please Exhibits 12-14).

7. He also was awarded the Sea Service Ribbon and the National Defense Medal. (Please See Exhibit 15).

8. Upon completion of his term of service in MAY 1992, BM2 W_ (Applicant) was Honorably discharged from active duty with a RE-lA reentry code. (Please See Exhibit 15).

9. His former Battalion Commander, Lt. Col Z_ T_ F_, III, characterized BM2 W_ (Applicant) as follows: “Corporal W_ (Applicant) is a ‘doer.’ He makes things happen both on an individual level, and as a leader. To understand his abilities, the reader needs to understand the uniqueness of a Marine Reconnaissance Battalion. As a member of the battalion, Corporal W_ (Applicant) was expected to be able to operate distance up to 150 kilometers ‘behind enemy lines’ in a small team composed of four to six Marines Corporal W_ (Applicant) met all of these requirements. In fact, he excelled, and learned the position of Reconnaissance Team Leader...” (Please See Exhibit 16).

10. His lstSgt, R_ R_ S_, wrote of BM2 W_ (Applicant): “His leadership abilities have been a source of inspiration to all who have come in contact with him but most notably the Marines in his charge...” (Please See Exhibit 17).

11. On 12 DEC 1997, BM2 W_ (Applicant) graduated from University Of California Santa Barbara with a Bachelor of Arts degree in Pre-Law. (Please See Exhibit 18).

12. On 24 APR 1998, BM2 W_ (Applicant) reenlisted in the United States Navy.

13. On 4 JAN 1999, BM2 W_ (Applicant) entered the Basic Underwater Demolition/SEAL Training Course. During his time at BUDS, BM2 W_ (Applicant) was part of an article in Reader’s Digest featuring the course. (Please see Exhibits 19 & 20).

14. He graduated from BUDS on 25 JUN 1999. (Please See Exhibit 21). He received orders to SEAL Team Two.

15. On 1 FEB 2000, BM2 W_ (Applicant) was designated a Basic Naval Parachutist. (Please See Exhibit 22).

16. On 12 MAY 2000, BM2 W_ (Applicant) completed SEAL Tactical Training. (Please See Exhibit 23 & 24).

17. On 25 JUN 2000, BM2 W_ (Applicant) was promoted to Second Class Petty Officer. (Please See Exhibit 25)

18. On 7 JUL 2000, BM2 W_ (Applicant) completed SEAL Tactical Communications Course. (Please See Exhibit 26).

19. In September 29th, 2000, during “work-ups” for a scheduled deployment, BM2 W_ (Applicant) and other members of SEAL Team Two went out to a bar in Virginia Beach. During the evening BM2 W_ (Applicant) became intoxicated and feel asleep in the back of a friends car. The Virginia Beach Police discovered him asleep in the car and arrested him for public intoxication. (Please See Personal Statement of BM2 W_ (Applicant)).

20. The following day, BM2 W_ (Applicant) was brought in front the Chiefs Board to discuss the incident. The chiefs told him that this was not about alcohol, but about his character. Neither his performance nor the isolate alcohol incident were discussed. (Please See Personal Statement of BM2 W_ (Applicant)).

21. BM2 W_ (Applicant) enrolled in Level II CAC in Norfolk, VA. Frustrated and disappointed at losing his security clearance and believing he had let his team down, BM2 W_ (Applicant) dropped out of Level II. (Please See Personal Statement of BM2 W_ (Applicant)).

22. BM2 W_ (Applicant) received a General Discharge under Honorable Conditions through a Notification Administrative Separation for Alcohol Rehabilitation Failure. He also received and RE-4 reentry code. (Please See Exhibit 27 & 28).

23. Since the night 2 1/2 years ago in Virginia Beach, BM2 W_ (Applicant) has not had a single drop of alcohol. (Please See Personal Statement of BM2 W_ (Applicant)).

24. After his discharge from the Navy, BM2 W_ (Applicant) worked on and received a Utility Patent for the Neckleash Eyewear Retention System of “NexStraps.” (Please See Exhibit 29).

25. In addition, he also began work with the First Marine Division Association. He is currently the Sergeant-at- Arms for the Northern California Chapter. He works on various projects such as setting up meetings, legislative initiatives involving Veterans and the annual Toys-for-Tots drive. (Please see Exhibit 30)

26. Of his involvement with the association, the president of association, Mr. V_ R_, a Vietnam veteran and San Francisco City Commissioner for Veterans affairs, writes: “As a moderately decorated former Marine veteran of the Vietnam war and as one who served two tours with rifle companies, holding every position in an infantry platoon ... including acting Platoon Commander, I can honestly submit to you that I can ‘read’ the mettle off the warrior - and fellow Marine J_ W_ (Applicant) is a warrior of the highest caliber.” (Please See Exhibit 30).

27. In preparation for this petition, BMCM M_ E. C_, USN, prepared a Letter of Recommendation for BM2 W_ (Applicant), attached as Exhibit 30. BMCM C_ is the Command Master Chief for Special Operations Command. He was also the Command Master Chief of SEAL Team Two during the time BM2 W_ (Applicant) was a member of the team.

28. BMCM C_ believes that BM2 W_ (Applicant) could and would continue to provide valuable service to his country. (Please See Exhibit 31).

29. Of the alcohol incident in Virginia Beach, he writes: “... I had regrets accepting the fact that this very talented individual could not see the problems in his life that ultimately affected his career in a negative manner. Unfortunately, I had no other choice than to recommend discharge for Petty Officer W_ (Applicant) due to non-compliance of protocol (rehabilitation failure) set forth in MILPERSMAN 1910-152.” (Please See Exhibit 31)

30. Yet even despite his full knowledge of that incident and the resulting discharge of BM2 W_ (Applicant), of the opportunity to have BM2 W_ (Applicant) back in the “teams,” he writes: “Since his discharge, Petty Officer W_ (Applicant) has had the time to reflect on his actions, and more importantly, has corrected the personal problems that had negative implications on his career. I know that the character of this individual is as strong as ever. Furthermore, Petty Officer W_ (Applicant) is anxious to serve his country in any capacity. Therefore, it is my recommendation that the RE-4 code be expunged from his record and that Petty Officer W_ (Applicant) be considered for active duty in the future.” (Please See Exhibit 31)
DISCUSSION

I. This Board should find that BM2 W_'s (Applicant's) discharge was improper because it was the result of an error in fact, procedure and discretion at the time it was issued. 32 CFR 724.902 (1)

 BM2 W_ (Applicant) was incorrectly sent to Level II Alcohol rehabilitation treatment after only one alcohol incident. A review of DAP policies and procedures contained at Exhibit 33 reveals that BM2 W_ (Applicant) never should have been sent to Level II. Level II is for ‘individuals who meet DSM-IV criteria for dependence or severe alcohol abuse and are recommended for an abstinence based program”. (Exhibit 33) A review of DSM-IV criteria for defining alcohol abuse or dependence, included in Exhibit 34, requires 3 or more incidents in a 12-month period. BM2 W_ (Applicant) had only one alcohol incident. Clearly, he should not have been classified as he was. It was this incorrect classification that lead directly to his failure of a program that he did not belong in. Therefore, the Board should find that BM2 W_'s (Applicant's) discharge was the result of an error in fact, procedure and discretion.

 II. The Board should find that BM2 W_'s (Applicant's) discharge was inequitable as it was based upon policies and procedures that differ materially from those currently in effect and it is doubtful that BM2 W_ (Applicant) would have been discharged today. 32 CFR 724.903 (a)

 Even if it could be found that at the time of his discharge BM2 W_’s (Applicant's) behavior would qualify him for Level II treatment, current policies and procedures would not. Specifically, under current US Navy DAP polices (Exhibit 33), BM2 W_ (Applicant) would not have been sent to Level II rehabilitation. Rather, he would have been deemed a Level .5, if any level at all. (Please See Exhibit 33) As a Level .5, he would have been required to undergo 20 hours of alcohol education. He would not have been sent away from his unit to an inpatient clinic --a clinic that he did not belong in. Had he been classified under current policies and procedures, he would never have been sent to the clinic. Therefore, he would not have been a Level II failure. Without the failure there would not have been any reason for processing BM2 W_ (Applicant). He would still be the US Navy SEALS and most likely would have fought along his fellow team members in Afghanistan and/or Iraq, and possibly other “hotspots” around the globe.

 III. This Board should find, per 32 CFR 724.903 (b), that at the time of issuance BM2 W_'s (Applicant's) discharge was inequitable in that it was inconsistent with the standards of discipline in the US Navy in 2 respects:

 A single alcohol incident off-base and off-duty should not have resulted in the discharge of BM2 W_ (Applicant) .

See I and II above.

 A characterization of discharge of General rather than Honorable based upon BM2 W_'s (Applicant's) military record was improper .

See IV below.

 IV. After reviewing BM2 W_'s (Applicant's) records, this Board should find that his discharge was inequitable and that relief is warranted. Per 32 CF 724. 903 (c)

 BM2 W_ (Applicant) is a highly motivated and extremely well trained individual. His military training as stated above has been superior. He has the training to serve in not just one but several of the military’s most distinguished units including: the Airborne, Rangers, Marine Force Recon and SEALs. Given the character of his performance while in the Navy and the level of competence he displayed, it is inequitable to label his service anything but Honorable.

Those that served with him in different capacities have said, in addition to the quotes above:

[He] enjoyed my complete trust and confidence in all respects. He continuously demonstrated the imagination and the initiative to accomplish both the explicit and implicit missions regardless of specific endeavor. (Lt Col F_, Exhibit 16).

His expertise, leadership abilities, and can-do attitude has made him a vital part of this command... (lstSgt. S_, Exhibit 17).

I submit this letter of recommendation ... with complete confidence in BM2 W_'s (Applicant's) knowledge, skill and physical and mental abilities to perform in any capacity all those duties deemed necessary by our United States Government in support and defense of our national security. (Mr. R_, Exhibit 30).

Petty Officer W_'s (Applicant's) performance at SEAL Team Two was truly remarkable. (BMCM C_, Exhibit 31).

Given all this “motivated” individual has accomplished, and all that he is capable of accomplishing, he does not deserve the life-long stigma that a General discharge casts upon his record. Taken as a whole his record of service was Honorable. The single isolated incident for which he was separated does not remove all he accomplished in becoming a SEAL. There are no other marks on his record that would make is character of service less than Honorable. In fact, BM2 W_'s (Applicant's) record reveals a highly motivated individual who dedicated his life to improving his skills in service of his country. Furthermore, as the exhibits reveal, he did so with great success. His service in the US Navy should be characterized as Honorable.

Of all the supporting documentation submitted, the most important and relevant is the letter from BMCM C_. As he states, he has served in the military for over 26 years and has developed “specific criteria that must be inherent in individuals I order for them to succeed as SEALs.” (Exhibit 31). He understands what a SEAL is called upon to do and the level at which they must perform. He also has complete knowledge of the alcohol incident and how BM2 W_ (Applicant) handled it. With all that knowledge and experience, he still believes that BM2 W_ (Applicant) should be allowed to serve. US Navy Command Master Chiefs, regardless of whether they are SEALs, do not have any desire to serve with anyone that they feel does not have the mettle to handle the tasks assigned. Clearly, BMCM C_’ s opinion should be accorded substantial deference and BM2 W_ (Applicant) should be granted the relief requested of the Board.
ACTION REQUESTED

 THEREFORE, based upon the foregoing, J_ D_ W_ (Applicant) respectfully requests this Board upgrade his discharge to Honorable and the RE-4 re-enlistment code.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (Member - 4 and Member-1)
Separation Authority dtd Dec 11, 2000
 Applicant’s Authorization to assume title and wear uniform of Third Class Petty Officer
 Certificate of Graduation (Seal Tactical Communications Crs), 15 May – 07 Jul 2000
180 pages of Applicant’s Marine Corp and Navy service and medical records (includes award certificates, DD 214 for Marine Corps service (880523 – 920508))
Post-Service Information:
         NexStrap Company (4 pages)
         NexStrap Letters of Interest (7 pages)
         Speed-Feed Company (9 pages)
         Speed-Feed Correspondence with the USMC (4 pages)
         M240 Marine Guan Assault Handle (7 pages)
         Letter’s of Recommendation (2 pages)
         Veteran Associations and Projects Applicant Involved in/with (6 pages)
         Family Photographs (4 pages)
         Applicant’s Résumé (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR(J)                880429 – 880522  COG
         Active: USMC              880523 – 920508  RELACDU (HON)
         Inactive: USMCR           920509 – 980827  HON (As reflected in record)
         Inactive: USNR            980424 – 981018  To report active duty
         Active: USNR              981019 – 990624  To enlist USN

[Applicant’s naval service could not be verified. The record does not contain enlistment contract.]

 Period of Service Under Review :
Date of Enlistment: 990625*     Date of Discharge: 001215

 Length of Service (years, months, days):

         Active: 02 01 27
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

Education Level: 16                        AFQT: 75 [Extracted from USMC SRB)

 Highest Rate: BM2/SGT

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF**       Behavior: NMF             OTA: NMF

 Military Decorations: Naval Special Warfare Insignia (SEAL), Basic Parachutist Insignia

 Unit/Campaign/Service Awards: Rifle Expert Badge, Pistol Expert Badge, MM(2), LoA, SSDR (w/2 stars), NDSM

 Days of Unauthorized Absence: None

*As corrected by the Board for Correction of Naval Records (BCNR)
**No Marks Found in service record.




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

GENERAL (UNDER HONORABLE CONDITIONS)/ ALCOHOL REHABILITATION FAILURE, authority: MILPERSMAN, Article 1910-152 (formerly Article 3630550).
Chronological Listing of Significant Service Events :

961123:  Physical exam reflects two DUIs (1987 & 1993).

 990625:  Reenlisted for term of four years under STAR Program, as corrected by BCNR.
001211:  CO, SEAL Team TWO directed Applicant’s discharge with a General (Under Honorable Conditions) due to Alcohol Abuse Rehabilitation Failure.
001215:  Applicant discharged and DD Form 214 issued.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20001215 with a general (under honorable conditions) due to alcohol rehabilitation failure (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that an impropriety in the discharge processing of the Applicant resulted in an inequitable characterization of his service (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Notwithstanding the Applicant’s issues, the Board has determined that an impropriety in the Applicant’s discharge processing affords him relief. Specifically, MILPERSMAN regulations are clear that any member processed for separation with total active service greater than six years must be offered an opportunity to appear before an administrative discharge board. The Applicant’s total active service was approximately one month greater than six years, triggering the requirement for administrative board procedures. While the Applicant’s discharge package is incomplete, evidence submitted by the Applicant and found on the DD Form 214 indicate that, contrary to regulation, the Applicant was processed without an administrative discharge board entitlement. Specifically, the DD Form 214 specifies the Applicant’s SPD code as “JPD” which denotes an involuntary discharge with no board entitlement. This evidence is further corroborated by the discharge letter from the CO, SEAL Team TWO, which directs that the SPD code also be “JPD”, an involuntary discharge, with no board entitlement. Based upon this impropriety, the Board concluded that there exists substantial doubt that the discharge would have remained the same if the error had not been made. Relief granted.

 Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 27, effective
27 Mar 2000 until 21 Aug 2002, Article 1910-152 (formerly Article 3630550), SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.


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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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