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NAVY | DRB | 2004_Navy | ND04-00766
Original file (ND04-00766.rtf) Auto-classification: Denied


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


ex-MS2, USN
Docket No. ND04-00766

Applicant’s Request
The application for discharge review was received on 20040408. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary discharge review. The Applicant did not list a representative on his DD Form 293. Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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: GENERAL (UNDER HONORABLE CONDITIONS) and the reason corrected to 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 on the application:
1. “ The review board I requested voted to retain me. However I was discharged as a C.A.A.C Failure. I don’t consider myself a failure but needed more training. And was unable to receive treatment while on shore duty. Due to my obligations to my job. And the cort case I was working on. Plus my preparation for my review board. I had no time. I have since gotten 30 days of treatment from the V.A. Hospital in Salem Virginia. I feel the D.U.I. was used against me in order to end my career. I relize I did this to myself. But the punishment is more than I can bear. * LDF I was punished by civil authorities and the Navy (Double Jeopardy) *LDF My ciritificate of graduation form the treatment I received in Salem Virginia a receipt from the store I was at to establish a time line. Pictures of the placement of the no U turn sign. My various awards. Please feel free to gather any records you may need as I don’t have access to them and the resources to attain them. * A copy of DD214* My lawyer C___ B. D___JAGC USNR (Telephone Number deleted) *LDF.
 My goals #1 to change my discharge to honorable #2 to continue my career at my rank at time of discharge and to complete 20 years of service. #3 to attend college. I have the G.I. Bill. I am finding it hard to adjust to civilian life and would be honored to serve my country again. I am finding certin things I’m not eligible for because of my general discharge. I.E. (College) (Certin Federal Jobs.) V.A Housing Loans. Even if my discharge is upgraded it is highly unlikely I will be able to get back into the Navy due to my age and or other factors. Please help in making a decision that could effect the rest of my life. Please review all enclosed documents especially the results of the Administration Review Board. LDF. ”

The American Legion did not provide any issues.


Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from BCNR dated March 1, 2004
DD Form 149
 Letter from Applicant to BCNR (Board Members) dated January 14, 2004 (3 pages)
 Alcohol Anonymous Meeting Schedule
Copy of COMNAVPERSCOM message, 21 May 03
 Copy of Report from Administrative Discharge Board (13 pages), dtd 15 May 03
Commanding Officer’s Letter to Applicant for Preliminary Suspension of Driving   Privileges (2 pages), dtd 3 Jun 2002
Applicant’s Acknowledgment Letter of Suspension of Driving Privileges
Unofficial Letter of Explanation (no signature or date)
Copy of Certificate of Graduation (Substance Abuse Residential Rehabilitation    Treatment Program) dated July 3-August 1, 2003
Copy of store receipt, dtd 23 Jul
Copies of Photographs of Intersection (12 pages)
 Copy of Special Request/Authorization, dtd 6/2/03
 Letter from Applicant, not dated
 Driver’s Education Application From District Court of the First Circuit Division State of        Hawaii dated December 20, 2002
Copy of the Applicant’s DD Form 214
 Copy of Commanding Officer’s ASW Excellence Award Letter (date not legible)
Copy of Commanding Officer’s Letter of Appreciation dated May 15, 1988
Copy of Commendatory Citation from CO, USS CHEYENE (SSN 773), not dated
Copy of Commendatory Citation from Commander, Submarine Squadron Eight, not      dated
Copy of Letter of Appreciation, dtd 7 Oct 99
Copy of Commendatory Citation from Rear Admiral K_, not dated
Copy of Commendatory Citation from Commander, Submarine Squadron Seven, not      dated
Copy of Meritorious Unit Commendation from Chief of Naval Operations, not dated
Copy of Commendatory Citation from K. E. M_, not dated
Copy of Letter of Appreciation from M. E. F_, not dated
Copy of Letter of Appreciation dated November 8, 1993
Copy of Letter of Appreciation dated July 5, 1994
Copy of Letter of Appreciation dated June 24, 2002
Copy of Commendatory Citation from R.T. C_, not dated
Copy of Commendatory Citation from T. J. R_, not dated
Copy of Applicant’s Mailing Envelope to NDRB

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860926 - 861020  COG
          Active: USN                        861021 - 891020  HON
 Active: USN                        891021 - 951126  HON
 Active: USN                        951127 - 010322  HON
Period of Service Under Review :
Date of Enlistment: 010323               Date of Discharge: 030606

 Length of Service (years, months, days):
         Active: 02 02 14
          Inactive: None
Age at Entry: 35                          Years Contracted: 5

 Education Level: 12                        AFQT: 31
Highest Rate: MS1

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.00 (4)             Behavior: 2.50 (4)                OTA: 3.10

 Military Decorations: None
Unit/Campaign/Service Awards: NMCAM, MUC (2), NAVY”E”(2), GCM (4), NDSM (2), SSDR (4), LOC (8), ESWI

 Days of Unauthorized Absence: None

 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 :

010323:  Reenlisted on board USS CHEYENNE (SSN-773) at Pearl Harbor, HI for 5 years.
010828:  Medical Officer Evaluation: at CAAC, Naval Medical Clinic, Pearl Harbor, HI.
Diagnosis: alcohol dependence (provisional
Treatment Recommendation: Outpatient.
 Recommendations:
1.       Additional classes scheduled.
2.       Abstain from further alcohol use.
3.       A psychologist has reviewed case.
4.       Recommendations have been discussed with patient [Applicant].
010913:  NJP for violation of UCMJ, Article 111: Drunken or reckless operation of a vehicle.
         Award: Forfeiture of $200.00 pay per month for 2 months, reduction to next inferior pay grade (suspended for 6 months). No indication of appeal in the record.

 010918:  Applicant assessed for psychosocial history and treatment placement at CAAC, Naval Medical Clinic by Navy Drug and Alcohol Counselor. Significant problems in following areas:
1.       Relapse potential
2.       Level of treatment acceptance (high)
3.       Presence of supportive environment
020723:  Apprehended by Honolulu Police Department for driving under the influence. A preliminary suspension of your driving privileges on all Department of Defense (DOD) installations is hereby imposed. [Extracted from supporting documents].

030213:  Applicant notified of intended recommendation for discharge with type warranted by service record with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure as evidenced by failure to complete the treatment program for alcoholism.
030219:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
030416:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the evidence does support alcohol abuse rehabilitation failure, that such failure warranted separation, and recommended that the separation be suspended for 36 months. By a vote of 2 to 1 the Board recommended that the applicant be discharge with a general (under honorable conditions).

030515:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure, also concurred with the findings of the Administrative Discharge Board.
Commanding Officer’s comments (verbatim): MS1 F____ is being processed for alcohol rehabilitation failure and exercised his right to request an Administrative Board Hearing. This board was held 16 April 2003. The Board concluded that the evidence support alcohol rehabilitation failure and that MS1 F___ should be separated with a General discharge. However, the board recommended separation be suspended for a period of thirty-six months. I agree with the board’s recommendation that MS1 Freeman is an alcohol rehabilitation failure and should be separated. I do not agree that his separation should be suspended but recommend he be discharged as soon as possible.
030521:  CNMPC directed the Applicant's discharge with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure.
030606:  Applicant declined in-patient treatment at Level III Treatment Facility.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030606 with a general (under honorable conditions) due to alcohol rehabilitation failure (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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant contends that although the review board voted to retain him in the Naval service, he was discharged as an alcohol rehabilitation failure. The Administrative Board voted 2 to 1 to suspend the Applicant’s discharge for 36 months. The Applicant’s commanding officer disagreed with the Administrative Board’s recommendation and recommended the Applicant be discharged as soon as possible. The Commander, Navy Personnel Command, Millington, TN, directed that the Applicant be discharged with a separation code of “GPD”, alcohol rehabilitation failure, but mistakenly listed “misconduct” as the narrative reason for separation. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A General 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. During this period of enlistment, the Applicant’s service was marred by a nonjudicial punishment proceeding on 20010913 for violation of Article 111 of the UCMJ (Drunken or reckless operation of a vehicle). Further, on 20020723 the Applicant was arrested by civil authorities for diving under the influence of alcohol. 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.

Outstanding post-service conduct, 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the applicant's record of community service, employment, conduct, educational achievements, and family relationships. The Applicant provided a certificate of completion of a VA Medical Center Substance Abuse Residential Rehabilitation Treatment Program as documentation of his post service. In reviewing the applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy. However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis. Therefore, relief will not be granted at this time. The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol free lifestyle. Verifiable documentation of such a lifestyle is essential.

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. Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 additional documentation to support any claims of post-service accomplishments at that time. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .


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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