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


FOR OFFICIAL USE ONLY


ex-FCSN, USN
Docket No. ND06-00048

Applicant’s Request

The application for discharge review was received on 20051004. 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 did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060717. 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 the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and letter:

“While I was aboard the USS Carl Vinson (CVN-70), serious problems occurred within my marriage. My wife became mentally unstable, was prescribed medication, and could not properly care for herself or our three children. At this time, I had relapsed into drinking after being diagnosed alcohol dependent. Over the next few months I had worked every angle to deal with all of this while fulfilling my duties at my command including: marriage counseling, alcohol counseling, and taking personal leave. After my ship received a Red Cross message from my wife’s psychologist recommending I stay behind during the next underway period (30 days), I was granted temporary assigned duty-beach detachment. On the morning while on my way to the ship for my TAD orders, my wife had called me sounding sedated complaining about her stomach and hung up. Fearing that she had overdosed on pills, I called 9-1-1, asking them to check on her until I could get home. After I got to the ship that was scheduled to leave later that day, the XO had denied my TAD orders and said I was going with them. I was also supposed to be in court that day for a DUI on top of wondering if my wife was in the hospital or not. Panicking, I was forced to place my family before anything else and chose UA status. While I was UA, I dealt with and began repairing my family along with the DUI which had resulted in a warrant from that day. I took care of everything I needed to in that period with no help from my command. When the ship returned, I turned myself in, and was discharged with a general under honorable conditions. When asked if I wanted to be discharged, I said yes, still very upset and frustrated with the situation and the way I was pressured into that decision. It was never my intention to go UA or develop a problem with alcohol. I feel hurt and that I was treated unfairly. I put 5 ½ years into the navy. I’m grateful for everything the navy has done for me, except for this one incident that still follows me. I am now putting my life back together, happily married, attending treatment and AA, and enrolled in the Aviation Institute of Maintenance. However, I’m having a hard time finding steady employment and am now denied GI Bill benefits for schooling due to my discharge. I feel I deserve a full honorable.
Thank you for your consideration. ”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from Port Orchard Clinical Psychology Center, W_ J. C_, Ph.D., dtd May 20, 2004
Applicant’s DD Form 214 (2)

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19980513 - 19980605      ELS
                  USNR (DEP)      19981114 - 19981227      COG
         Active: USN      19981228 - 20021123      HON

Period of Service Under Review :

Date of Enlistment: 20021124             Date of Discharge: 20040806

Length of Service (years, months, days):

         Active: 01 08 13
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 30 days
         Confinement:              None

Age at Entry: 23

Years Contracted: 5

Education Level: 12                                 AFQT: 69

Highest Rate: FC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 4.0 (2)                       Behavior: 3.5 (2)                 OTA: 3.79

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Unit Commendation, Navy Good Conduct, National Defense Service Medal, Sea Service Deployment Ribbon

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

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT, authority: MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events :

021124:  Reenlisted this date for a term of 5 years.

040203:  Applicant entered intensive outpatient treatment. [Extracted from Command DAPA letter dated 040703.]

040227:  Applicant completed intensive outpatient treatment. [Extracted from Command DAPA letter dated 040703.]

040313:  Applicant entered continuing care/after-care program. [Extracted from Command DAPA letter dated 040703.]

040529:  Applicant arrest in Kitsap County, Washington and charged with driving under the influence of alcohol. Adjudication pending.

040601:  Applicant to unauthorized absence on 040601.

040630:  Applicant from unauthorized absence on 040630 (29 days).

040701:  Applicant to unauthorized absence at 1940 on 040701.

040702:  Applicant from unauthorized at 2332 on 040702 (1 day).

040703:  Commanding Officer notified of Command DAPA’s consideration of Applicant’s treatment failure.

040715:  NJP for Charge I: violation of UCMJ, Article 86
Specification 1: In that Fire Controlman Third Class R_ M. L_(Applicant), U S Navy, USS CARL VINSON, on active duty, did, on or about 1 June 2004, without authority, absent himself from his appointed place of duty, to wit USS CARL VINSON, located at Naval Station Bremerton, Washington, and did remain so absent until on or about 30 June 2004.
Specification 2: In that Fire Controlman Third Class R_ M. L_(Applicant), U.S. Navy, USS CARL VINSON, on active duty, did, on or about 1940, 1 July 2004, without authority, absent himself from his appointed place of duty, to wit USS CARL VINSON, located at Naval Station Bremerton, Washington, and did remain so absent until on or about 2332, 2 July 2004.

CHARGE II: Violation of the UCMJ Article 87
Specification In that Fire Controlman Third Class R_ M. L_(Applicant), U.S. Navy, USS CARL VINSON, on active duty, did, at or near Naval Station Bremerton, Washington, on or about 1 June 2004, through design miss the movement of USS CARL VINSON with which he was required in the course of duty to move.
CHARGE III: Vio1ation of the UCMJ, Article 92
Specification 1: In that Fire Controlman Third Class R_ M. L_(Applicant), U.S. Navy, USS CARL VINSON, on active duty, did, at or near Bremerton, Washington, on or about 29 May 2004, fail to obey a lawful general order, to wit paragraph 6(E), OPNAVINST 5350 4C, dated 29 June 1999, by wrongfully consuming alcohol after completing Intensive Out-Patient Treatment Level II.
Specification 2: In that Fire Controlman Third Class R_ M. L_(Applicant), U S. Navy, USS CARL VINSON, on active duty, having knowledge of a lawful order issued by Master Sergeant J_ H_, USAF, to report to USS CARL VINSON once he arrives to Seattle, WA, at 1740, 1 July 2004, an order which it was his duty to obey, did, at or near Bremerton, Washington, on or about 1 July 2004, fail to obey the same by wrongfully not reporting to USS CARL VINSON until 2323, 2 July 2004.
         Award: Forfeiture of $842.00 per month for 1 month (suspended for 6 months), restriction for 60 days, reduction to E-3. No indication of appeal in the record.

040727:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as GENERAL (Under Honorable Conditions) by reason of Commission of a Serious Offense and Alcohol Abuse Rehabilitation Failure.

040727:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

040823:  Commanding Officer, USS CARL VINSON (CVN 70) directed discharge with a general (under honorable conditions) by reason of alcohol rehabilitation failure and misconduct - commission of a serious offense. Commanding Officer’s comments: “On 1 June 2004, FCSN L_(Applicant) missed the movement of CARL VINSON and commenced a 29-day period of unauthorized absence. Upon his return, he was found to have consumed alcoholic beverages after completing Level II Intensive Out-Patient Treatment in violation of paragraph 6(E) of OPNAVINST 5350.4C, dated 29 July 1999. FCSN L_(Applicant), was deemed a treatment failure due to his apprehension on 29 May 2004 by Washington State Patrol for driving under the influence with a blood alcohol content of .214. It is clear that FCSN L_(Applicant) has committed three serious offenses, two of which were alcohol related. Based on this misconduct, I processed FCSN L_(Applicant) for administrative discharge from Navy.
On 6 August 2004, FCSN L_(Applicant) was separated on the basis of misconduct due to Commission of a Serious Offense. In light of his inability to overcome his problems with alcohol and considering his above average performance as a Fire Controlman, I have characterized his discharge as General (Under Honorable Conditions). His separation code was JKQ.”

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040806 by reason of misconduct due to commission of a serious offense (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).

The Applicant contends that his problems in the Navy can be attributed to stress brought-on by a family situation that caused his relapse and continued alcohol abuse. While he may feel that his abuse of alcohol and family stress was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record shows that one nonjudicial punishment proceeding for violations of Article 86 (unauthorized absence for 30 days), 2 specs of Article 92: (Failure to obey a lawful order), and Article 87 (missing movement) marred the Applicant’s service. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. Violations of Article 86, 87 and 92 are considered serious offenses and typically warrant a punitive discharge if adjudged at a special or general court-martial. Furthermore, the record shows an unadjudicated violation of Article 111 (drunken driving), which is also classified as a serious offense. The record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 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 states he is “ having a hard time finding steady employment and am now denied GI Bill benefits for schooling due to my discharge”. The applicant states he “deserves a full honorable.” The Veterans Administration determines eligibility for post-service benefits not the Naval 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. Relief denied.

For the edification of the Applicant, 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 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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service 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 additional evidence related to this 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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 86 (unauthorized absence), Article 92 (Failure to obey a lawful order), Article 87 (missing s movement) and Article 111 (drunken driving).

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