Upgrade.Vet

NAVY | DRB | 2006_Navy | ND0600240

Original file (ND0600240.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-MMFN, USN
Docket No. ND06-00240

Applicant ’s Request

The application for discharge review was received on 20051118. 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 National Capital Region. The Applicant did not designate a representative on the DD Form 293. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061006 . 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 misconduct due to civil conviction .

PART I -
APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant ’s issues, as stated on the application and/or attached document/letter:

“ My Discharge General under Honorable was improper because it was based on one isolated incident was used in discharge Proceedings ”

Documentation

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

Applicant ’s personal statement, undtd (2 pages)
Character Reference ltr from H_ C. B_, CEO, E _ S _ Company, Inc, dtd March 14, 2006
Letter of Recommendation from H_ E. H_, President, E _ S _ Company, Inc, dtd May 6, 2003
Letter to Applicant from Department of Veterans Affairs, dtd March 10, 2006
Letter to Applicant from S_ C. K_ , President, Alpha Alpha Theta Chapter of Phi Theta Kappa, dtd March 3, 2006
Letter to Applicant from W. W_ P_, Ed.D, President, Cecil Community College, dtd March 8, 2006
Character Reference ltr from J_ T. C_, dtd March 2, 2006
Cecil Community College transcript, dtd February 8, 2006
Extracts from Applicant ’s service record (2 pages)
Applicant ’s DD Form 214

PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     19990415 - 19990425       COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19990426              Date of Discharge: 20011005

Length of Service (years, months, days):

         Active: 0 2 0 5 1 0
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 23

Years Contracted: 4

Education Level: 1 1 GED                   AFQT: 36

Highest Rate: MMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3 .0 ( 1 )                       Behavior: 3 .0 ( 1 )                 OTA: 3 .00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): NONE

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: MILPERSMAN, Article 1910-144 (formerly 3630610).

Chronological Listing of Significant Service Events :

990415 : Pre-service waiver for 2 Chart C’s (driving under the influence and leaving the scene of an accident) and for 2 Chart B’s (two public intoxications) granted.

000625: Applicant arrested for the charge of operat ing a motor vehicle while under the influence of alcohol or self-administered intoxicant or drug (accident).

000711: Civil Conviction: General District Court, Norfolk, VA f or violation of Driving under the influence (accident).
Sentence: Fine $200.00 plus $30.00 cou rt cost, jail for 6 months (suspended), operator’s license suspended for 12 months, and must successfully complete ASAP.

000913: Applicant arrested for charge of fail to yield to pedestrian in crosswalk .

001023: Civil Conviction: General District Court, Traffic Division, Norfolk, VA , for violation of failure to carry valid restricted permit and failure to yield to pedestrian.
Sentence: Fine $75.00 plus $5.00 court cost .

010118: Applicant signed statement of understanding acknowledging appointment with a Licensed Independent Practitioner at the Addiction Rehabilitation Department in Norfolk on 010118 at 0900 for an evaluation for alcohol abuse/dependency.

010121: Applicant arrested for driving while under the influence of alcohol (second offense).

010312: Applicant to Level II treatment at Addictions Rehabilitation Department in Norfolk, VA , as a result of command referral following an arrest for driving under the influence (DUI) and driving with a restricted license on 010124. He refused to undergo breathalyzer and field sobriety tests. He denies drinking at the time of the incident and insists that he has not consumed any alcohol since 000626. The patient subsequently evaluated by a Licensed Independent Practitioner and diagnose d with alcohol abuse R/O dependence. He had been previously screened at ARD Norfolk after a DUI on 000626 (BAC was .14). He perceives a need for treatment, but only to satisfy the court requirements.
         Legal history: Applicant was arrested for driving under the influence on June 26, 2006 , and in approximately June 1998. He was also arrested for public intoxication twice in 1998. He was counseled for being one hour late in January 2001.
         Initial diagnosis: AXIS I: Alcohol dependence. Nicotine dependence.
         AXIS II: No diagnosis.
         AXIS III: Herniation of nucleus pulposus, by history.
         Treatment course: Applicant was assigned to an alcohol group for participation in a structured program comprised of group counseling, educational and therapeutic workshops, meditation, physical training, military training and conduct, relapse prevention workshop and attendance at 12-Step meetings. During treatment, the patient provided further information about his drinking history and endorsed daily drinking, increased tolerance, drinking more than intended, unsuccessful efforts to control use, excessive time spent, and lifestyle changes due to use. Applicant ’s diagnosis was changed to alcohol dependence. The patient struggled with completing task assignments in group but was very active developing and working with a 12-Step support system. He developed an effective recovery program to include attendance at 12-Step meetings and is aware of the signs and symptoms of relapse. These issues are addressed in Applicant ’s Continuing Care Plan. Applicant ’s prognosis for continued recovery is fair provided the Applicant adheres to the recommended Continuing Care Plan.

010403: Medical Evaluation at Naval Medical Center, Addiction Rehabilitation Department, Norfolk, VA , by W_ G. F_, HM, IDC, USN and J_ H_, M.D., LT, USNR, MC. Patient in the 4 ^th week of Alcohol Rehabilitation – doing well in treatment. Applicant present to medical requesting Naltrexane. Aware of risks and benefits. Agrees to proceed. Assessment: Alcohol dependence. Plan: 1. Naltrexane 1 PO QD (#14 no refills). 2. LFT’s in 2 weeks, then 6 weeks, then every 3 months while on medication. 4. Stop taking if any discussed side effects occur. 5. Avoid all alcohol-containing foods and products. 6. Follow-up PRN.

010406: Report of release from treatment at Addictions Rehabilitation Department in Norfolk , VA , by J_ H_, MC, LT, USNR. Applicant was discharged with a continuing care plan in support of sobriety. Applicant does fulfill the criteria for nicotine dependence, therefore formal tobacco cessation treatment is indicated. The Applicant is to contact the command or a Health Promotions Department for availability.
         Final Diagnosis: AXIS I: Alcohol dependence. Nicotine dependence.
         AXIS II: No diagnosis.
         AXIS III: Herniation of nucleus pulposus, by hist o ry .

010406: Applicant signed continuing care plan for Addictions Rehabilitation Program stating he understood and agreed with contents.

010510 : Civil Conviction: United States District Court for the Eastern District of Virginia for violation of driving under the influence (2 ^nd offense).
Sentence: Jail for 5 days, to be served on weekends and to be directed by Probation Officer, probation for 12 months, operator’s license suspended for 1 year, attend VASAP, fine $250.00 plus court cost.

010518 : Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct – commission of a serious offense and misconduct – civilian conviction.

010521 : Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

010703: Applicant discharged from ARD Norfolk Continuing Care program due to being absent from the Continuing Care group without prior notification to Applicant ’s Continuing Care counselor.

010712 : An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 3 to 3 , found that the Applicant had committed misconduct – civilian conviction and misconduct – commission of a serious offense , and recommended retention .

010719 : Commanding Officer, Naval Support Activity, Norfolk, VA, recommended to Commander, Navy Personnel Command , Applicant ’s separation by reason of misconduct due to misconduct – civilian conviction and misconduct – commission of a serious offense. Commanding Officer’s comments: “ I concur with the findings of the Administrative Board, but I do not concur with the recommendations of the Administrative Board.
Fireman S_( Applicant ) has not been a productive Sailor since his enlistment. In a seven month period, Fireman S_( Applicant ) accumulated three civilian convictions, two of the three being for serious crimes of Driving under the Influence of alcohol (DUI). This type of behavior is unbecoming of a Sailor and is detrimental to good order and discipline in the Navy.
After conviction of his first DUI in July 2000, Fireman S_( Applicant ) did not seek the proper assistance from his command DAPA while stationed onboard USS BATAAN (LHD 5) and/or Transi en t Personnel Unit, Norfolk. It wasn’t until two months after he checked onboard this command, that Fireman S_( Applicant ) sought help for his alcohol problem. On or about December 2000, he was scheduled to go to Level I outpatient treatment, but on 21 January 2001, he was arrested again for operating a motor vehicle while under the influence of alcohol. This set back his treatment plan until 21 March 2001. Fireman S_( Applicant ) has obtained the proper counseling for his addiction to alcohol and is following an aftercare plan. I do not feel that Fireman S_( Applicant ) would be a very productive Sailor to this command nor to the Navy.
As Fireman S_( Applicant ) stated in sworn testimony, “I cannot guarantee that I will ever drink or get behind the wheel of an automobile again after drinking”. As his superior officer, I cannot and will not take this chance, because every person under my authority is inva1ua b 1e a nd safety is paramount . In our Navy, these chances cannot be tolerated nor be taken lig htly. Fir eman S _(Applicant)’s untrustworthiness , character and m ilitary bearing are not considered in good standing with the Na vy’s core values, rules, and r egulations of Naval Service . B a sed on the above informatio n, I would recommend that Fireman S _(Applicant) be separated from the Naval Service with a discharge commensurate with your authority . ”

010723: Applicant ’s submitted a statement to Secretary of the Navy, via Commander, Navy Personnel Command (PERS 832).

010801: Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s general (under honorable conditions) discharge by reason of misconduct due to civilian conviction.

010820: Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to civilian conviction.

010822 : CNPC, directed the Applicant ’ s general (under honorable conditions) discharge by reason of misconduct due to civilian conviction.

010829: Applicant found medically qualified for separation.

011022: Commanding Officer, Naval Support Activity, Norfolk, VA, recommended to Commander, Navy Personnel Comma nd (PERS 832), that Applicant be d ischarge d under other than honorable conditions by reason of misconduct – civilian conviction and misconduct – commission of a serious offense . Commanding Officer’s comments : “I concur with the findings of the Administrative Board, but I do not concur with the recommendations of the Administrative Board.
Fireman S_(Applicant) has not been a productive Sailor since his enlistment. In a seven-month period, Fireman S_(Applicant) accumulated three civilian convictions, two of the three being for serious crimes of driving under the influence of alcohol (DUI). This type of behavior is unbecoming of a Sailor and is detrimental to good order and discipline in the Navy.
After his first DUI conviction in July 2000, Fireman S_(Applicant) did not seek the proper assistance from his command DAPA while stationed onboard USS BATAAN (LHD 5) and/or Transient Personnel Unit, Norfolk. It was not until two months after he checked onboard this command, that Fireman S_(Applicant) sought help for his alcohol problem.
On or about November 2000, he spoke with Naval Support Activity, Norfolk’s Command DAPA. The Command DAPA scheduled Firearm S_(Applicant) for an Intake appointment with the Norfolk Alcohol Rehabilitation Department on 9 February 2001. Firearm S_(Applicant) did not contact the Command DAPA until after he was arrested again on 21 January 2001, for operating a motor vehicle while under the influence of alcohol. This set back his treatment plan until 21 March 2001. Fireman S_(Applicant) has obtained the proper counseling for his addiction to alcohol and is following an aftercare plan. I feel that neither the Navy nor this command would benefit from the continued service of Fireman S_(Applicant).
Fireman S_(Applicant) stated in sworn testimony, “I cannot guarantee that I will ever drink or get behind the wheel of an automobile again after drinking”. As his superior officer, I cannot and will not take this chance. Every person under my authority is invaluable and safety is paramount. In our Navy, these chances cannot be tolerated nor be taken lightly. Fireman S_(Applicant)’s untrustworthiness, character and military bearing are not considered in good standing with the Navy’s core values, rules, and regulations of Naval Service. An Other Than Honorable Discharge is appropriate in Applicant’s case. ”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011005 by reason misconduct due to civil conviction (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 discharge is improper because it was based on one “isolated incident.” 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 or 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 three civil convictions. Of the Applicant’s three civil convictions in less than three years of active duty, two convictions were for driving under the influence of alcohol. The Applicant’s convictions for driving under the influence are considered the equivalent of violating Article 111 of the UCMJ, drunk driving. Violations of Article 111 of the UCMJ are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at a special or general court-martial. The Applicant’s conduct is considered a violation of the special consideration given the Applicant at the time of his waivered enlistment. 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 implies, through the submission of his supporting documents, that his discharge should be changed on the basis of post-service accomplishments. 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 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. The Applicant provided documents related to his education and employment as well as character references. Examples of additional documentation that should be provided to the Board include 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. Relief denied.

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33 effective
9 Jul 01 until 21 Aug 02, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction.

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 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

Similar Decisions

NAVY | DRB | 2006_Navy | ND0600463

Original file (ND0600463.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEWDECISIONAL DOCUMENT FOR OFFICIAL USE ONLY ex-IT2, USN Docket No. Decisional Issues: Propriety/Equity – command misconduct Propriety – didn’t meet criteria for discharge Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Letter from Applicant, dtd February 1, 2006Applicant’s DD Form 214 (Member 4)Court Order from the State of Texas, dtd...
NAVY | DRB | 2006_Navy | ND0600906

Original file (ND0600906.rtf) Auto-classification: Denied

The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. There is credible evidence in the record that the Applicant used illegal drugs, a violation of Article 112a of the UCMJ. You may view DoD Instruction 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...
NAVY | DRB | 2002_Navy | ND02-00160

Original file (ND02-00160.rtf) Auto-classification: Denied

ND02-00160 Applicant’s Request The application for discharge review, received 011203, requested that the reason for the discharge be changed to erroneous discharge with a RE-1 or 3 code. In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing and that the NDRB does not have the authority to change a reenlistment code. Applicant did not object to...
NAVY | DRB | 2006_Navy | ND0600384

Original file (ND0600384.rtf) Auto-classification: Denied

ND06-00384 Applicant’s Request The application for discharge review was received on 20060104. Implement survival plan.Applicant acknowledged having read and understood aftercare plan.890619: Applicantreleased from Naval Hospital, Oakland, CA having successfully completed 6 weeks Level III Alcohol Rehabilitation Treatment.890622: Treatment Summary, Alcohol Rehabilitation Department, Naval Hospital, Oakland, CA, CDR S. W. S_, MC, USNR, Head, Alcohol Rehabilitation Department: This 24 year old...
NAVY | DRB | 2006_Navy | ND0600584

Original file (ND0600584.rtf) Auto-classification: Denied

*Third set of Performance and Behavior marks extracted from supporting documents submitted by the Applicant (page 1 only) 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). Pt stated that he has had suicidal thoughts since a kid but denied any plans or attempts. When the service of a member of the U.S. Navy has been honest and faithful, it is...
NAVY | DRB | 1999_Navy | ND99-01141

Original file (ND99-01141.rtf) Auto-classification: Denied

Pt reports drinking heavily last p.m. His prognosis is guarded provided he adheres to the recommended continuing care plan.Final Diagnosis: AXIS I: Alcohol Dependence with Physiological Dependence Early Full Remission in a Controlled Environment (303.90), Nicotine Dependence (305.10) AXIS II: No Diagnosis (V71.09) AXIS III: No Diagnosis951112: NJP for violation of UCMJ, Article 92: failed to obey a direct order by HM1 R. M_ and HM2 M_ by sleeping on duty while on watch at ER, USS AMERICA at...
NAVY | DRB | 2006_Navy | ND0600447

Original file (ND0600447.rtf) Auto-classification: Denied

The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application: “ I Need to Get my RE Code Changed from an RE-4 to an RE-1 So that I can Re-join the US Army and serve my Country with Honor, Courage and Commitment. Pt (Applicant) is a 22-year-old male referred by LT. P_.
NAVY | DRB | 2005_Navy | ND0501292

Original file (ND0501292.rtf) Auto-classification: Denied

Relief is not warranted.The Applicant contends that his problems in the Navy can be attributed a diagnosed personality disorder (not otherwise specified) and that the command did not follow medical advice. The Applicant was evaluated by a competent medical authority who stated that the Applicant was “considered totally unfit for further shipboard/overseas duty.” Although the Applicant may have been eligible for administrative separation for a medical condition, applicable regulations...
NAVY | DRB | 2005_Navy | ND0500646

Original file (ND0500646.rtf) Auto-classification: Denied

[Statement listed as enclosure on the Commanding Officer’s undated letter, but not found in service record. ]UNDATED: Commanding Officer, USS SHILOH informed the Commander, Navy Personnel Command (PERS-832) of the Applicant's discharge with a characterization of general (under honorable conditions) by reason of alcohol abuse rehabilitation failure. FA K_'s (Applicant’s) recent NAVPERS 1070/613 warning advised him that any future deficiencies in conduct; violations of the UCMJ, or conduct...
NAVY | DRB | 2000_Navy | ND00-00834

Original file (ND00-00834.rtf) Auto-classification: Denied

My discharge Under Other Than Honorable Conditions is inequitable based on the recommendation of Dr. J. D_, MD, Drug/Alcohol Screening Evaluation of 21 October 1993 at the Naval Hospital, Lemoore, CA. this alcohol related incident, a previous civilian DUI arrest, treatment for alcohol abuse at Level II (CV-60) in May 1993 and he was diagnosed as alcohol dependent by a medical officer on 21 Oct 1993. No relief based on this issue.In response to the applicant’s issue 3, the applicant had an...

Search Decisions

Decision Text

NAVY | DRB | 2006_Navy | ND0600240

Similar Decisions