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NAVY | DRB | 2005_Navy | ND0500129
Original file (ND0500129.rtf) Auto-classification: Denied


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

ex-BMSA, USN
Docket No. ND05-00129

Applicant’s Request
The application for discharge review was received on 20041020. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary review was conducted in Washington, D.C. on 20050323. 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

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

1. “for work related purposes”

Issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

 2. “Propriety and Equity Issue(s): The applicant was administratively separated from the Navy after numerous NJP proceedings, which all stemmed from an addiction to alcohol. The applicant was not properly rehabilitated prior to discharge as warranted by DoD and Navy regulations.
Statement: In accordance with 32 CFR § 724, and SECNAVINST 5420.174D. The Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant was found guilty of numerous violations of the UCMJ by reason of NJP proceedings on 20 November 1987 (Art. 134), 25 July 1988 (Art. 86), 24 June 1994 (Art. 92), and 24 October 1994 (Art. 111). The applicant’s conduct was hampered by his addiction to alcohol, which was not properly treated when he was in service.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     861014 - 861019  COG
         Active: USN                        861020 - 910627  HON

 Period of Service Under Review :
Date of Enlistment: 910628               Date of Discharge: 941212

 Length of Service (years, months, days):

         Active: 03 05 15
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4 (5 months extension)

 Education Level: 12                        AFQT: 25

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.71 (7)             Behavior: 3.60 (7)                OTA: 3.71

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NER, SSDR (3), NDSM, SASM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

940624:  NJP for violation of UCMJ, Article 92: Dereliction in the performance of duties assigned.
         Award: Restriction for 30 days, reduction to E-3 (suspended 6 months). No indication of appeal in the record.
940626:  Applicant diagnosed as not alcohol dependent , recommend Level I-II treatment.
940629:  Retention Warning: Advised of deficiency (Recent violation of the UCMJ, Article 92. Specifically, Applicant was found guilty of being derelict in the performance of his duties.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

940810:  Preliminary evaluation: Applicant appears to meet the DSMIII-R criteria for psychoactive substance (alcohol) abuse. Referred to Level II alcohol treatment.

941024:  Punishment suspended at CO’s NJP held on 940624, reduction in rank, is vacated this date due to Applicant’s continued misconduct.
941024:  NJP for violation of UCMJ, Article 111: Driving while intoxicated on 940904.
         Award: Forfeiture of $466.00 pay per month for 1 month, restriction for 30 days, reduction to E-2. No indication of appeal in the record.
941115:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and by reason of failure of Level II alcohol rehabilitation treatment. Applicant notified, that if separation is approved, the least favorable characterization of service is under other than honorable conditions

941115:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), 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 the separation.
941117:  Applicant declined in-patient treatment at a Department of Veterans Affairs hospital due to the Applicant’s drug and/or alcohol dependency.
941118:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and by reason of alcohol rehabilitation failure.

941203:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941212 under other than honorable conditions for misconduct due to commission of a serious offense (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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. 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. T here is credible evidence in the record to suggest the Applicant’s service was marred by alcohol related misconduct, including drunk driving, dereliction of duty, fighting, and unauthorized absence. This misconduct resulted in two separate nonjudicial punishment proceedings for violations of UCMJ Articles 92, and 111. The record also indicates that at some point, the Applicant failed or refused Level II CAAC treatment to resolve these alcohol problems. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

Issue 2: The Applicant contends, through counsel, that his misconduct was the result of his alcoholism and that he was denied alcohol rehabilitation treatment. Although the Applicant’s misconduct may very well have stemmed from his alcoholism, this is not a defense to his misconduct. The evidence of record does not demonstrate, that despite the Applicant’s alcoholism, he was not responsible for his conduct or that he should not be held accountable for his actions. The evidence of record also demonstrates that the Applicant was referred no less than twice for alcohol rehabilitation treatment. Subsequent to these referrals, the Applicant continued to commit alcohol related misconduct. The contention that the Applicant was not afforded appropriate treatment is without merit. Relief denied.

There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. 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. 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 – COMMISSION OF A SERIOUS OFFENSE.

 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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