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NAVY | DRB | 2005_Navy | ND0500815
Original file (ND0500815.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AA, USN
Docket No. ND05-00815

Applicant’s Request
The application for discharge review was received on 20050406. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated the Veterans of Foreign Wars as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006. 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) by reason of alcohol rehabilitation failure.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“ATTENDING REGULAR AA MEETINGS, 5 PER WEEK. MARCH 17, 2005 WAS 1 YEAR SOBER DATE. VETERAN IS CURRENTLY HOMELESS, UNABLE TO FIND WORK DUE TO CHARACTERISTIC OF DISCHARGE.”

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

 “ Propriety or Equity Issue(s):

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

Mr. W_ (Applicant) served in the US Navy from Aug. 7, 2001 to Jan. 29, 2004. He is a veteran of Op Iraqi Freedom who served in the Middle Eastern theater on the USS Nimitz from Mar. 4, 2003 to Jul. 9, 2003. He is a recipient of the National Defense Service Medal and the Sea Service Deployment Ribbon.

Mr. W_ (Applicant) was separated from the Navy with a General discharge as an alcohol rehabilitation failure. He has several non-judicial punishments for incidents relating to alcohol and its abuse. He had enlisted performance marks in the range of 2.5 to 3.0.

Mr. W_ (Applicant) is a homeless veteran who has been unable to secure employment or get on with his life since leaving the Navy. We ask that in the interest of fairness and equity Mr. W_ (Applicant)’s discharge be re-characterized as fully honorable.

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.”

 Applicant’s Remarks: (Taken from the DD Form 293.)
“VETERAN HAS NO EVIDENCE TO SUBMIT. ONLY EVIDENCE IS SIGN-IN SHEETS AT AA MEETINGS.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990921 - 20010111      ELS
 USNR (DEP)      20010623 - 20010806      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20010807             Date of Discharge: 20040129

 Length of Service (years, months, days):

         Active: 02 05 23
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 20

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 56/36

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.5 (2)                       Behavior: 2.5 (2)                 OTA: 2.84
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal (1), Sea Service Deployment Ribbon (1)


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 :

010618:  Applicant briefed on Navy's policy of drug and alcohol abuse.
020327:  NJP for violation of UCMJ, Article 91:
         Specification: Disobedience on 020223.
 Violation of UCMJ, Article 92:
Specification: Orders violation on 020223.
Violation of UCMJ, Article 123a:
Specification: Making, drawing, or uttering check without sufficient funds.
         Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

020327:  Retention Warning: Advised of deficiency (CO’s nonjudicial punishment on 020327 for VUMCJ Article 91, disobedience, Art 92, failure to obey order or regulation, and Art 123a, making, drawing or uttering check without sufficient funds), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 021021:  Medical evaluation by Naval Hospital, Lemoore, CA.
          Assessment: Alcohol dependency.
         Recommendation: Intensive Outpatient Treatment.

 021113:  NJP for violation of UCMJ, Article 134:
         Specification: Disorderly conduct drunkenness on 021006.
         Award: Forfeiture of $619.95 for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

021113:  Retention Warning: Advised of deficiency (Viol. UCMJ, Art 134: Disorderly conduct, drunkenness.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030130:  USS NIMITZ Medical Department: CAAC Screening: Assessment/Plan – Intensive Outpatient treatment.
031208:  DAPA Screening Assessment/Plan: Alcohol dependence. Medically stable – cleared for inpatient treatment.
040112:  Applicant to Substance Abuse Rehabilitation Program at Naval Hospital Camp Pendleton, CA.

040116:  Applicant terminated from Substance Abuse Rehabilitation Program at Naval Hospital Camp Pendleton, CA as non-amenable to treatment.

040126:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general by reason of misconduct - alcohol abuse rehabilitation failure and misconduct - pattern of misconduct.
040126:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
040202:  Commanding Officer, Strike Fighter Squadron 94 directed the Applicant's general (under honorable conditions) discharge by reason of alcohol abuse rehabilitation failure. Commanding Officer’s comments: “AA W_ (Applicant) is being separated due to Alcohol Abuse Rehabilitation Failure and Pattern of Misconduct. AA W_ (Applicant) had an alcohol related incident in October 2002 (disorderly conduct and drunkenness) and was awarded CO’s nonjudicial punishment (enclosure (7)). This command has attempted to help AA W_ (Applicant) by sending him to alcohol rehabilitation treatment to which he was not amenable and failed to complete. AA W_ (Applicant) was terminated from his treatment on 16 January 2004 because he failed to participate in his rehabilitation.
 He stated to his counselors that he only reason he was attending Alcohol Rehabilitation was to “put the check in the block so his command would not separate him.” Unfortunately, I foresee no potential on the part of AA W_ (Applicant) and I must separate him from Naval Service with a characterization of service General - Under Honorable Conditions.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040129 by reason of alcohol rehabilitation failure (A and B) with a service characterization of general (under honorable conditions). 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).

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. The Applicant’s service was marred by two retention warnings and two nonjudicial punishment proceedings for violations of Articles 91, 92 and 123a of the UCMJ. Violations of Articles 91, 92 and 123a are considered serious offenses. 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 Applicant was terminated from Substance Abuse Rehabilitation Program at Naval Hospital Camp Pendleton, CA on 20040116 due to being non-amenable to treatment. The Applicant was discharged due to his failure of Alcohol Rehabilitation. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. While the Board commends the Applicant’s recent sobriety and hopes the Applicant is successful in maintaining his sobriety, verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief is not warranted.

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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-152 (formerly Article 3630550), SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION

B . The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91, insubordinate conduct, Article 92, failure to obey a lawful order and Article 123a, check writing with insufficient funds.

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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