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NAVY | DRB | 2005_Navy | ND0500072
Original file (ND0500072.rtf) Auto-classification: Denied


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


ex-FA, USN
Docket No. ND05-00072

Applicant’s Request
The application for discharge review was received on 20041013. The Applicant requested the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

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: UNDER OTHER THAN HONORABLE CONDITIONS/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:
“The change is requested so that I can be entitled to medical benefits and all other benefits that applies. It would justify me in getting better employment. Its to satisfy the well being of me to have my discharge change from a bad one to more of a better one, because all of the time I was in the Navy, I was a good worker and I did follow and obey my superiors. The Navy gave me a good life one I will miss. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of the Applicant’s DD Form 214 (4 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930629 - 930707  COG
          Active: Non
Period of Service Under Review :
Date of Enlistment: 930708               Date of Discharge: 940818
Length of Service (years, months, days):

          Active: 01 01 10
          Inactive: None

 Age at Entry: 31                          Years Contracted: 4

Education Level: 11               AFQT: 35

 Highest Rate: FA
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB (1)              Behavior: 3.20 (1)                OTA: 2.80
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940114:  Director, Counseling and Assistance Center Sasebo, Japan, Interim Report ICO FR D_ O. C_, USN. Preliminary finding is alcohol abuse. Applicant meets DSM-III-R criteria for psychoactive substance abuse (alcohol). Applicant is considered at high risk for future alcohol abuse and associated problems if he isn’t afforded the opportunity for rehabilitation. Applicant has guarded potential for continued productive Naval Service.
940122:  NJP for violation of UCMJ, Articles 91 and 134.
 Violation of UCMJ Art 91: Disrespect to Non-Commissioned Officer.
Violation of UCMJ Art 134: Drunk and Disorderly.
         Award: Forfeiture of $400.00 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.

 940201:  Letter from Commander, U.S. Naval Forces Japan to Commanding Officer, USS BEAUFORT. Subject: LEVEL II EARLY DISCHARGE ICO FR F_ O. C_, USN. Applicant discharged from Level II rehabilitation on 28 January. Applicant should not be considered a rehabilitation failure but as not amenable to Level II treatment. Applicant’s prognosis fro continued military service without further incidents of alcohol abuse is considered poor.
         Recommendations: Applicant should be enrolled in a formal one year regimen for alcohol abuse to include at a minimum: a) Meeting with the DAPA once a week for counseling and support during the one year plan; b) Attendance at CAAC Sasebo’s aftercare group on Wednesdays from 1230 to 1330 when possible; c) Holding him strict accountable for his behavior with any further incidents of alcohol abuse being handled in accordance with reference (a).

940201:  Retention Warning from USS BEAUFORT (ATS-2): Advised of deficiency, (On 28 January 1994 you were discharged early from Level II due to your: Unwillingness/inability to participate in group counseling (defensiveness), failure to complete group assignment (autobiography), failure to muster for physical training on 27 January 1994 (at 0700) and ambivalence about treatment) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940225:  NJP for violation of UCMJ, Articles 92 and 134.
 Violation of UCMJ Art 92: Failure to obey order or regulation.
Violation of UCMJ Art 134: Disorderly Conduct, Drunkenness.
 Violation of UCMJ Art 134: Drunkenness, incapacitation for performance of duties.
         Award: Forfeiture of $400.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

 940426:  Director, Counseling and Assistance Center, Sasebo, DEPENDENCY DETERMINATION ICO FR D_ O. C_ [Applicant], USN. “Based on the results of a Substance Use Disorder Diagnostic Schedule (SUDDS) interview conducted on 25 April 1994 he [Applicant] appears to meet DSM-III_R criteria for psychoactive substance dependence (alcohol). The following criteria apply: loss of control, use interferes with responsibilities, continued use despite knowledge of recurrent problems, marked tolerance. The patient [Applicant] appears to have no potential for continued productive Naval Service. He isn’t amenable to treatment or to examining his alcohol use on any level. It is recommended that the Command proceed with administrative processing and that a medical officer conduct a dependency determination. The results of that assessment should be documented in the patients’ outpatient record to enable the service member an opportunity for treatment via the Veterans Administration – if found alcohol dependent and eligible for VA treatment.”

940506:  NJP for violation of UCMJ, Articles 134, Drunkenness.
 In that FR D_ O. C_, USN, was, onboard USS BEAUFORT (ATS-2) located at Sasebo, Japan, on or
         Award: Forfeiture of $400.00 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

 940511:  Commanding Officer, USS BEAUFORT (ATS-2), notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment.

940512:  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. Applicant did not object to this separation.
940608:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. Commanding Officer’s comments (verbatim): “ FR C_ has been restricted to the ship for 120 of the 150 days he has been onboard. His three NJP’s are due to his inability to control his alcohol problem. At his first mast on 22 January 1994, he was identified as a potential alcohol abuser and was referred to CAAC, Sasebo Japan for further screening. CAAC screened him as meeting the criteria for alcohol abuse and recommended Level II Outpatient Treatment (Enclosure 6). He was enrolled in Level II on 24 January but was discharged early due to an unwillingness to participate (Enclosure 7). Enclosure (7) specifically states “HIS DISCHARGE SHOULD NOT BE CONSIDERED A REHABILITATION FAILURE BUT AS NOT AMENABLE TO LEVEL II TREATMENT”. For this reason alone FR C_ is not being dual processed for separation by Reason of Alcohol Abuse Rehabilitation failure. Following his third NJP, he was referred back to CAAC for an Alcohol Dependency Determination. CAAC referred him to Branch Medical Clinic Sasebo (Enclosure 9) where FR C_ was evaluated as being Alcohol Dependent. There is no place no the Navy for FR C_. He refuses to admit the he has a problem and has spurned every effort to help him. I recommend that he be separated from the Navy with a General Discharge. I further recommend that he be offered Alcohol Treatment through the Veteran’s Administration.”

940714:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct. BUPERS message includes the following statement: “FYI, per MPM 3610260.3, MBRS must be processed for all reasons for which the minimum criteria are met. MBR should also have been processed for misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940818 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).
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.

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. 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 3 nonjudicial punishment proceedings for violations of Articles 91, 92, and 134 of the UCMJ. Also, competent medical authorities diagnosed the Applicant as alcohol dependent. Additionally, he was released from Level II treatment due to his unwillingness to participate. 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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, evidence of alcohol rehabilitation, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider.

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, Change 9, effective
22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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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