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NAVY | DRB | 2006_Navy | ND0600051
Original file (ND0600051.rtf) Auto-classification: Denied


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


ex-CS2, USN
Docket No. ND06-00051

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 personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. 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. The Applicant designated civilian counsel as the representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20060807. After a thorough review of the available 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 by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on an attached letter:

“CS2 B_ M_ (Applicant) was improperly discharged with less than six (6) months before he was eligible to retire. CS2 M_ (Applicant) is requesting retirement pay, or in the alternative, to be returned to active duty status.”

 The Applicant’s Representative submitted no issues for consideration.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Deficiency, dtd August 18, 2004 (9 pages) (4)
Naval Medical Center, Orthopedics Clinic Note, dtd April 5, 2004 (2 pages) (5)
Gold Wreath Award – Letter of Commendation, dtd June 15, 2000, with two certificates of award (3 pages) (2)
Medical record entry, dtd January 07, 2004 (2)
Ltr from S_ J_, LCSW, SARP Naval Station, dtd March 11, 2004 (3)
Ltr from C_ C_, LCSW, SARP Naval Station, dtd May 12, 2004 (3)
Article entitled “History and Future of ‘Aftercare,’” (3 pages) (2)
Medical record entry (page 3 of 4 of evaluation), undated (2)
Seventy-two pages of evaluation reports (includes duplicate reports)
Applicant’s DD214 for period of service ending May 10, 1988 (2)
Enlisted performance record (NAVMC 1070/609)
Copy of picture related to recruiting (2)
Copy of recruiting award for FY2000 (2)
Copy of certificate of appreciation with photo, undated (2)
Copy of newspaper article, dtd August 7, 200X (2 pages) (2)
3 pages of newspaper articles/photos
Character Reference ltr from Capt. G_ T. L_, USMCR, dtd October 30, 2005
Character Reference ltr from M_ G. L_, dtd October 29, 2005
Character Reference ltr from M_ G. L_, dtd October 29, 2005
Ltr to The Honorable J_ W_, US Senator, dtd November 29, 2004 (2 pages)
Map of Main Street and 32 Street (2)
Telephone (Medical) Consultation, dtd June 01, 2004
Medical photograph (2)
Ltr from CS2 B_ M_ (Applicant) to the Honorable F_ R. W_, Congressman, dtd November 22, 2004 (2 pages) (2)
Charge Sheet, dtd May 7, 2004
Applicant’s Reenlistment Contract, dtd April 13, 2001
Military Suspect’s Acknowledgement and Waiver, February 25, 2004
Applicant’s DD Form 214 for period of service ending December 27, 2002 (Member 1)
Four excerpts of documents entitled “Information about respondent” (character witness statements), dtd July 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19840215 - 19840805      COG
         Active: USN      19840805 - 19880510      HON
         Inactive: USNR (DEP)     19880928 - 19890205      COG
         Active: USN      19890206 - 19950430      HON
         Active: USN      19950501 - 20010412      HON

 Period of Service Under Review :
Date of Enlistment: 20010413             Date of Discharge: 20041202

 Length of Service (years, months, days):

         Active: 03 07 20
         Inactive: None

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

 Age at Entry: 35

 Years Contracted: 4

Education Level: 12                                 AFQT: 31

 Highest Rate: CS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.7 (3)              Behavior: 2.0 (3)                          OTA : 2.95

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Armed Forces Expeditionary Medal, Meritorious Unit Commendation, Good Conduct Medal (5), National Defense Service Medal, Pistol Marksman Ribbon, Sea Service Deployment Ribbon, Navy Achievement Medal (2).


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

UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

010413:  Reenlisted this date for a term of 4 years.

011220:  NJP for violation of UCMJ, Article 92 (2 specs):
         Specifications Failure to obey order or regulation.
         Award: Forfeiture of $500.00 pay per month for 2 months, reduction to E-4 (suspended for 6 months). No indication of appeal in the record.
030513:  Substance Abuse Rehabilitation Department (SARD), Naval Medical Center San Diego, substance abuse screening: Applicant diagnosed with substance use disorder. Psychologist recommended Intensive Outpatient Program and referral to Fleet Mental Health.
030605:  Substance Abuse Rehabilitation Department, Naval Medical Center San Diego, competency for duty examination: Applicant was found not competent to stand duty/work due to excessive alcohol use.

030618:  Treatment Care Summary: The patient is a 37 year-old, married, Caucasian, male, with eighteen years of continuous active duty. The patient was referred for treatment to the Substance Abuse Rehabilitation Program (SARP), Naval Medical Center, San Diego (NMCSD), for an on base DUI BAC.11 on 30APR03.
         Substance Use History: The patient began a regular pattern of alcohol use at age 17, six 12oz beers, two days per week. M_ T_, Ph D, Licensed Independent Practitioner diagnosed the patient with Alcohol Dependence in Sustained Partial Remission, Posttraumatic Stress Disorder and Dysthymic Disorder on 13 May 2003 and referred him to SARP for further evaluation and treatment.
          Treatment Course:
          The patient completed four weeks of Intensive Outpatient treatment. The patient’s prognosis for continued sobriety is fair based on ongoing mental health issues and lack of sober support network here in San Diego.
          Recommendations for aftercare/continuing care:
         1. MS2 M_ (Applicant) should remain abstinent based on his diagnoses.
         2. MS2 M_ (Applicant) should meet with the Command DAPA on a weekly basis.
         3. MS2 M_ (Applicant) should attend two self-help meetings per week and would benefit more from Christian based recovery programs such as the “Most wanted”.
         MS2 M_ (Applicant) should attend Continuing Care sessions at FFSC, NAS North Island on Fridays, 0900 to 1030 weekly.

030710:  Fleet Mental Health Unit, Branch Medical Clinic, Naval Station San Diego, initial evaluation:
 REFERRAL INFORMATION : The member is a 37-year-old, married Caucasian male, AD, E-5, USN with 18 years 2 months of continuous active duty currently attached to NAVSTA, CBH.
SUICIDE RISK ASSESSMENT: The patient denied present or past suicidal ideation, as well as past or present
DIAGNOSTIC IMPRESSIONS :
 AXIS I:          Alcohol Abuse vs Dependence
Adjustment Disorder with mixed emotions and conduct
AXIS II:          None
AXIS III:        s/p hip replacement surgery (6/17/03) Pain reported at 2/10 see medical record
AXIS IV:         Occupational, medical and primary support stressors
AXIS V:  GAF (current) 55-60
DISPOSITION : This member has no psychiatric diagnosis that will result in referral to the Physical Evaluation Board for adjudication.
CONCLUSIONS AND RECOMMENDATIONS:
Psychiatrically is on limited duty with pending PEB (9/03) for medical problem. The term “fit” in this report means, and only means that the member has no major psychiatric illness for which he will be
medically boarded. The member was referred to a psychiatrist for medication evaluation. Alternatively, he may be prescribed medication
(SSRI) by a primary care physician. The member may benefit from brief supportive individual psychotherapy. He will also continue compliance with Aftercare treatment program for Alcohol Abuse/Dependence.
RTC as scheduled in two weeks. The recommendations were discussed with the member who indicated understanding and agreement with the treatment plan. This report will be forwarded to the member’s medical record.

030912   Summary Court-Martial.
         Charge 1: violation of the UCMJ, Article 91:
         Specification: Did on 3 July 2003 willfully disobey a lawful order given to him by MSC R_.
         Charge 2: Violation of the UCMJ, Article 92:
 Specification: Did on 3 July 2003 from 0300 to 0700 was derelict in the performance of duty, negligently failed to arrive on time and in the proper uniform, as it was his duty to do so.
Charge 3: Violation of the UCMJ, Article 111:
Specification: Did on the 01 May 2003 operate a vehicle, to wit: a passenger car while alcohol concentration in his breath was .10 grams per 210 liters of breath as shown by chemical analysis.
Charge 4: Violation of the UCMJ, Article 134:
Specification: On 3 July 2003 incapacitated for the proper performance of his duties, to wit: standing watch from 0300 to 0700 hours 3 July 2003, at the CBH.
          Finding: to Charges 1, 2, 3 and 4 the specifications thereunder, guilty.
          Sentence: Forfeiture of $1522.20 pay per month for 1 month, restriction for 60 days.
         CA action 030916: Sentence approved and ordered executed.

030919:  NAVPERS 1070/613 warning issued. [Extracted from Commanding Officer’s letter of 040825.]

040225:  Military Suspect’s Acknowledgement of and Waiver of Rights: Applicant informed he was suspected of violating Article 117 – Provoking Speeches or Gestures and Article 134 (73) – Disorderly Conduct. [Document provided by Applicant.]

040507:  Charges preferred for violation of the UCMJ, Article 134: Specification: In that [Applicant] on active duty, Naval Station, San Diego, California, was at or near San Diego, California, on or about 24 February 2004, drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces. [Document provided by Applicant]

040723:  An Administrative Board found, by unanimous vote, found that the Applicant had committed misconduct and that his misconduct warranted separation under other than honorable conditions.

040818:  Applicant’s Counsel generated a letter of deficiency. [Document provided by Applicant.]

040825:  Commanding Officer, Naval Base, San Diego, recommended to Chief of Naval Personnel, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to pattern of misconduct; alcohol abuse rehabilitation failure. Commanding Officer’s comments: “CS2 B_ P. M_ (Applicant)’s repeated misconduct precludes further retention in the Naval service. Furthermore, he failed to comply with the Substance Abuse Rehabilitation Department (SARD), in which he was involved in a second alcohol-related incident. An OTH discharge is warranted in this case.”

041122:  CHNAVPERS, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct.

Service Record contains a partial Administrative Discharge package.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20041202 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board invoked the presumption of regularity. Specifically, the Board presumed that the Applicant was properly notified of his Commanding Officer’s intent to administratively process the Applicant for separation and that the Applicant was afforded all rights which he elected at notification.

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 a retention warning and nonjudicial punishment proceedings for violation of Article 92 of the UCMJ. The Applicant was also convicted of committing violations of Articles 91, 92, 111 and 134 of the UCMJ at summary court-martial. The Applicant’s violations of articles 91, 92 and 111 of the UCMJ are serious offenses for which punitive discharge is authorized if awarded as part of the sentence at a special or general court martial. Subsequent to the Applicant’s retention warning, an administrative discharge board found the Applicant had committed misconduct and that his misconduct warranted separation under other than honorable conditions. The Applicant was also a alcohol rehabilitation failure. 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 contends that he was improperly discharged. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was improperly discharged. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Prior to the Applicant’s retention warning, he committed violations of Articles 91, 92, 111 and 134 of the UCMJ. Subsequent to the Applicant’s retention warning, an administrative discharge board found that the Applicant committed misconduct that warranted separation under other than honorable conditions. The Commanding Officer recommended the Applicant’s separation on 20040825. On 20041122, CHNAVPERS directed the Applicant’s discharge. Relief is not warranted.

The Applicant requests retirement pay or to be returned to active duty. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.

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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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, disobey a lawful order or 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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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