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NAVY | DRB | 2004_Navy | ND04-01218
Original file (ND04-01218.rtf) Auto-classification: Denied


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

ex-IC2, USN
Docket No. ND04-01218

Applicant’s Request
The application for discharge review was received on 20040728. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed. The Applicant requests a personal appearance hearing in Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.


Decision

A documentary discharge review was conducted in Washington, D.C. on 20041122. 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 and reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/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. "Dear Review Board:

My discharge from the United States Navy was improper and unprofessional. On April 18, 2003 I was considered an Alcohol Rehabilitation Failure, and given an Administrative Discharge from S.I.M.A. San Diego. During the board hearing I was unable to present this information prior to the boards decision. The OPNAV INSTRUCTION 5350.4C procedures were not followed correctly during my initial screening process of the substance abuse program. The Administrative Board convened a little over an hour after my participation in the Naval E-6 rating exams. I returned to my command during the lunch time hour and was unable to abstain all my information from personal not present in my work center. I did not have the following paper work with me to explain my issues that were very important in my defense. On July 19, 2001 I was sent to an alcohol screening consultation for suspected use of alcohol during a Domestic Violence incident that occurred on June 5 , 2001. After review of my records and discussion. I was recognized as not having any significant problems and diagnosis. I was recommended to attend Alcohol Impact class from both an Addictions Counselor and Licensed Independent Practitioner(LIP). I returned to my command and was waiting a start date when I received a phone call in my work center for me to return for another screening without reason given to me. The re-screening process and information used were not in accordance with Naval Instruction causing me fear and confusion. Page 5 statement of OPNAV INSTRUCTION 5350.4C Guidance for Reporting Seniors explains misconduct should be weighed along with all other performance factors during a respective reporting period. The first issue during the re-screening was my attending a command program Prevent class program in 1994 seven years prior. Page 17 of the Instruction says that command programs are not considered treatment and I think should not have been an issue. Seven years is not a respective reporting period either. I was a seaman at the time and my command sent us before attending Fleet Week New York. The only time I was ever UA from my command was after attending a command picnic function which I had already explained during my first screening process.

Two months earlier on March 14, 2001 I received a 3.57 on my Evaluation Report and Counseling Record with 3 standard markings and 4 above-standard markings. I also earned the recognition of Distinguished Military Graduate from Fleet Training Center, San Diego after completing a maintenance course on February 9, 2001. On my Evaluation Report before reporting to shore duty upon leaving my ship command. I received a 4.29 with markings as high as greatly exceeds standards. These reports were factored in the first time. On page 19 paragraph 4 Screening and Treatment programs the MO or LIP will determine the extent of the abuse and recommend the level of treatment to return the service member to active duty. On the Consultation sheet when I was recommended for Impact class from the LIP the first time it reads Final Recommendation ICO the Instruction 5350.4C . Page 20 of the Instruction paragraph C states that the C.O. will always follow the recommendation of the screening summary, in exceptional cases when they choose not to follow a written notification must be sent through COMNAVPERSCOM via appropriate chain of command. Counselors at the S.A.R.D. program told me this was not done for they would have a copy of any notification showing good reason why the first personnel did not do the job correctly for a re-screening. Page 6 paragraph 3 above section 8 the Naval Evaluation and Counseling Instruction should be consulted before reporting anything special. I thought I did well that past year. There is a statement on the front of the second screening sheet dated August 9, 2001 asking if the patient shows any evidence of cognitive abnormality that would effect his/her ability to learn diagnosis and treatment. The way the proceedings were going made me think someone was trying to put me in some trouble rather than to receive treatment. It seemed to be a disagreement on a personal level. I was becoming scared and confused toward my chain of command. I asked the doctor why do I have to re-screen. He could not give me any answer other than someone at my command was not happy and requested a re-screening. You can see there was not anything specific, because his fist issue noted dates back to 1994. I feel I was not given the proper opportunity to attend and receive treatment with a clear mind to learn what I needed. I feel it was unfair and goes against our Navy Core Value of Honor. I deserved an honorable chance. I know that if my admin. board had seen this information I would not be writing you today. I Respectfully Request to appear before the board to better explain my issues. Forgive me if this letter is not in complete format for correctly writing an appeal before the board. Everyone I speak with from the VA administration here in Shreveport does not have any experience in this matter. I am basically working alone on this matter. I had to write my Congressman for his help to learn I could write a letter to this review board. Please forgive me for such elapsed time my father passed away last October and from the time it took to send and receive mail from my first to last contact I had with my congressman. This was prolonged more than I hoped for.

Sincerely,
S_ W. B_ (Applicant)”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Member of Congress, J_ M_, dtd April 7, 2004
Copy of letter from Navy Personnel Command, T.E.D_, dtd April 5, 2004
3 pages from the Applicant’s Medical Record
Copy of Evaluation Report, dtd 3/14/01
Copy of Evaluation Report, dtd 14 Jun 99
Copy of letter from A_Y.W_, not dated
Copy of obituary, not dated
Copy of Certificate, dtd 09 February 2001
Copy of OPNAVINST 5350.4C CH-1 (7 pages), April 19, 2000
Copy of Administrative Discharge Package, (17 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930713- 930902   COG
         Active: USN                        930902 - 990901  HON

 Period of Service Under Review :
Date of Enlistment: 990902               Date of Discharge: 030418

 Length of Service (years, months, days):

         Active: 03 07 17
         Inactive: None

 Age at Entry: 27                          Years Contracted: 4

Education Level: 12                        AFQT: 69

 Highest Rate: IC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.77 (9)    Behavior: 2.66 (9)                OTA: 3.21

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, SSDR, NER, MUC, AFSM, GCM (2), NUC, AFEM

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 :

990902:  Applicant re-enlisted this date for 4 years.
010605:  Civil Conviction. San Diego, CA Superior Court charged with California Penal Code 243(e)(1) (Punishment for battery).
         Sentence: Pay $200.00 payable at the rate of $75.00 per month commencing 5 July 2001; Pay $100 for counseling fees; Enroll in Domestic Violence Program (DVP); Perform 40 hours of volunteer work through any non-profit organization; Probation for 3 years.

 010619:  Retention Warning: Advised of deficiency: failed physical fitness assessment (PFA). Applicant advised of administrative functions for the first or second failure of a PFA in a four-year period.

010927:  Counseling entry. “You are notified that you have completed the Comprehensive Full-Time Treatment Program (for substance abuse or substance abuse dependence) at the Substance Abuse Rehabilitation Department (SARD), Naval Medical Center, San Diego. Should you fail to complete all aspects of your aftercare program or if you are involved in a subsequent substance related incident, per OPNAVINST 5350.4C and NAVMILPERSMAN 3630550, you may be considered for administrative separation.

011001:  Commander, Naval Medical Center, San Diego, CA letter, Completion of Treatment ICO IC2 S_ W_ B_ [Applicant]. Applicant completed treatment for substance abuse on 14 September 2001. IC2 B_ [Applicant] was released from the Substance Abuse Rehabilitation Department (SARD) of this command and returned to full duty. Applicant agrees to continue the rehabilitation process and that the Command Drug and Alcohol Program Advisor (DAPA) ensure compliance with all provisions of this aftercare program. Should IC2 B_ [Applicant] engage in any further substance related incidents or demonstrate a lack of motivation an/or effort during the 12 month aftercare period, IC2 B_ may be processed for administrative separation.
021205:  Civil Conviction. San Diego, CA Superior Court, charged with California Vehicle Code 23152(b) (Prohibition of driving under the influence of alcohol or drugs).
         Sentence: Serve 4 days in custody of the Sheriff, pay a fine of $1,650.00, Restitution fee of $100.00, A/R Fee of $35.00. Assessment fee of $100.00, complete Multiple Conviction Program and participate in any treatment or rehabilitation and probation for 5 years.

 021205:  Applicant notified of intended recommendation for discharge by reason of misconduct – commission of a serious offense and alcohol rehabilitation failure.
030114:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030103:  Substance Abuse Treatment ICO IC2 S_ W_ B_ [Applicant]. Applicant completed treatment in the Intensive Outpatient Treatment Program at the Substance Abuse Rehabilitation Program on 27 December 2002. The prognosis for further substance is poor.
         Recommended: Applicant attends aftercare at NAS North Island Fleet and Family Support Center; attend three AA meetings per week; participate in a Command Monitored Program.

030113:  Substance Abuse Program Completion Statement provided by the Commanding Officer, Intermediate Maintenance Activity, San Diego. Applicant notified that he has completed the formal treatment phase of his rehabilitation program and he is directed to participate in the aftercare program for at least one year or until separation from the Naval Service.

030311:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct -commission of a serious offense, and that the Applicant was a alcohol rehabilitation failure; that such failure warranted separation, and recommended discharge with a general (under honorable conditions).

030318:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure as evidenced by civil conviction for driving under the influence of alcohol.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030418 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, Applicant alleged he was unable to present information to the administrative discharge board prior to the board’s deliberation and decision. The record does not support this contention nor does it contain evidence of any wrongdoing by the government in the administration of the discharge process. 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 proper in all respects. Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that alcohol rehabilitation failure was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate.

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 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 5420.174C 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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