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NAVY | DRB | 2006_Navy | ND0600384
Original file (ND0600384.rtf) Auto-classification: Denied


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

ex-LI2, USN
Docket No. ND06-00384

Applicant ’s Request
The application for discharge review was received on 20060104 . 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. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing at the Washington Navy Yard, Washington D.C. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061116 . 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 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:

 “ DISCHARGE UNDER OTHER THAN HONORABLE CONDITIONS WAS UNFAIRLY APPLIED
SEE ATTACHMENT 1-DETAILED EXPLANATION AND JUSITICATION ”
“ My purpose in filing this application is to respectfully request that my administrative discharge, under other than honorable conditions, of 31 October 1990, be reviewed by the Naval Discharge Review Board and, at the very least, be changed to an Administrative Discharge, Under Honorable Conditions. I feel I was unjustly punished by the nature and character of my discharge when one considers my entire naval service and the circumstances of other sailors at FASOTRAGRUPAC, MOFFETT, who received non-judicial punishment rather than discharges under conditions other than honorable for any single, similar civilian conviction. Others were punished and allowed to return to duty. There are a number statements in my record which reflects: “excellent performance” and “Good potential for future productive military service,” and when the decision was issued by COMNAVMILPERSCOM to discharge me under other than honorable conditions, even one local command authority seemed surprised by this characterization for the discharge.

The character and nature of my naval service through a first enlistment, extension, and into a second enlistment as reflected by my performance evaluations certainly do not reflect punishable conduct. All performance evaluations prior to my final set of evaluations depict only reasonable and consistently honorable service. Only my final performance evaluation shows a drop in numerical values in order to justify the nature of the administrative discharge, which was done to satisfy existing personnel instructions. In contrast, my performance evaluations depict only exemplary service up to the time of the single conviction by a civilian court, which leads me to my disagreement regarding the type of discharge I received. I feel that my prior character of service was not justly considered in the decision of the Under Other Than Honorable Conditions discharge that I received. I feel that the discharge under other than honorable conditions not warranted nor fairly applied.

 As referenced in the court document from Santa Clara County Judicial District, the sentence handed down from the DU I conviction included fines, probation, and nine days weekend work with one day being served prior to court. I was assigned to four weekends of community service at a park near Moffet Field. Although I have no documentation to support my statement, I am pleased to say that I served my sentence with an appropriate dedication and attitude and was released by the site officer one weekend early for good behavior.
In the beginning of my treatment program, I was counseled by trained counselors, at least one a recovering alcoholic. It was my feeling that the last counselor (After Care Program Coordinator) who worked with me after Level III treatment was untrained, unqualified, and unconcerned working a collateral duty.

 Documentation in this case refers to a rehabilitation program failure. The isolated relapse involving civilian conviction of DU I subsequent to Level III Treatment program did not necessarily constitute failure of my rehabilitation effort. On page 2 of the enclosed Alcohol Rehabilitation Department Treatment Summary, dated at discharge from Level III treatment program at Naval Hospital, Oakland, Dr. S_ refers to OPNAV 5350.4. I feel that this was an isolated incident and did not warrant separation from service. I continued to follow the regimen prescribed by Dr. S_ at discharge from the Level III treatment program, with no incidents up to the DUI conviction. Yes, I relapsed. But I did not feel that I failed the treatment program.
Some of the statements made by Dr. S_ on the first page of the treatment summary were incorrect. I did not “ quarrel and fight with others when drinking. ” I believe that he was referring to an incident in the barracks where my jaw was broken. On that occasion, I was assaulted by a civilian still living in the barracks after he was discharged from the Navy. I had no idea that he was already a civilian and still living in the barracks. I was trying to encourage that person not to drink anymore after he threw up outside my room over a balcony. After the incident, the person simply left the base and I had no known recourse for any legal action against him. This incident was considered an alcohol related incident, even though my only participation was being on the receiving end of someone’s drunken aggression.

After being discharged from the Navy, I worked at a number of print facilities in Maryland, married in September 1994, and shortly thereafter, my wife and I moved to Roanoke, VA, I have resided there since. My wife and I have two children. I now work at Hollins University (a women’s university) and have been working there since May of 1996. It is a fine, stable job in the in-house Printing, Mailing, and Shipping Department. I have had no incidents with the law (since the DUI conviction in California) other than minor traffic violations.

As a final observation, it occurred to me that the form of my discharge was supposed to be an administrative procedure not a judicial procedure. Yet, the resulting action taken in this discharge was definitely punitive in nature, actions normally put in place through NJP or court-martial. As such, I feel my discharge was unjust and unfair. In conclusion, my administrative discharge under other than honorable conditions might have been more appropriate as an administrative discharge under honorable conditions when considering my entire naval service. I was proud of my service to the Navy and my country...and remain so today. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Service 2)
Applicant ’s DD Form 214 from prior service (Service 2)
Nine pages from Applicant ’s service record
Enlisted Performance Evaluation Report from April 1, 1987 to March 31, 1988 (2 pages)
 Enlisted Performance Evaluation Report from May 5, 1988 to March 31, 1989 (2 pages)
 Enlisted Performance Evaluation Report from April 1, 1989 to March 31, 1990 (2 pages)
 Enlisted Performance Evaluation Report from April 1, 1990 to October 31, 1990 (2 pages)
 Character Reference ltr from B_ L. L_, Supervisor, Hollins University, Printing, Mailing and Shipping, dtd November 22, 2005
 Character Reference ltr from R_ A. C_, Sr. Assistant Registar, Hollins University, dtd November 30, 2005
Character Reference ltr from A_ K_, Assoc. Pastor, Ed. & Youth Ministries, dtd December 1, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19840117 - 19840126       COG
          Active: USN      19 8 4 0127 - 19871225        HON
Period of Service Under Review :
Date of Enlistment: 19871226              Date of Discharge: 19901031

Length of Service (years, months, days):

          Active: 0 2 1 0 0 6
         Inactive: None

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

Age at Entry: 22

Years Contracted: 4
Education Level: 12                                 AFQT: 48

Highest Rate: LI2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3. 6 ( 4 )               Behavior: 3.0 ( 4 )                 OTA: 3 . 5 0
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form s 214): Good Conduct Medal (First), 88Jan/Armed Forces Expeditionary Medal (Second), 87Dec/Sea Service Deployment Ribbon (Third), 88Apr , Navy Battle “E ”


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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct -convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

871226 :  Reenlisted this date for a term of 4 years .

890118:  Drug/Alcohol Screening/Evaluation , LCDR T_ A. D_, MC, USNR.
          Alcohol abuse discovered. Self referral. Applicant admits to alcohol abuse.
          Recommendation: CAAC Outpatient Program Level II. Additional comments: Member verbally relates an understanding of alcohol as a problem in his life and seems motivated to address his problem in a positive manner.
890331:  Applicant completes Level II treatment program.
89042 4 :  Medical entry: Military Sick Call, Naval Air Station, Moffett Field, CA , LCDR T_ A. D_, MC, USNR:
         S) Follow up going to Level III 890509. No new or worry symptoms. No N & V. Member (Applicant) believes he has a problem with alcohol. Used to drink periodically; have blackouts; has his jaw broke while drunk and in a fight; while h is jaw was wired shut he fell while drunk.
         A: Alcohol dependence.
         P: 1. Continue antabuse 250 daily. 2. LFTS every 3 months. 3. RTC PRN. 4 Level III as planned.
        
890505:  Applicant advised by l etter from Officer in Charge, Fleet Aviation Specialized Operational Training Group, Pacific Fleet, Detachment Moffett Field, of Applicant ’s formal evaluation as an alcohol abuser. Inform ed Applicant that to remain eligible for continued service Applicant must participate in the Level III program regimen specified. Failure to cooperate in and complete the regimen will constitute grounds for separation processing.
890509:  Applicant admitted to Naval Hospital, Oakland, CA for Level III Alcohol Rehabilitation Treatment .
890614:  Medical entry: Aftercare Plan , Naval Hospital Oakland, CA, T_ L. C_, Alcoholism Counselor : Patient ( A pplicant) has completed six weeks in Level III treatment for alcoholism at Alcohol Rehab Department Naval Hospital, Oakland, CA on 89 0619. Patient has received maximum benefit from treatment. The following aftercare plan is provided:
          1. Attend a minimum of 3 AA meetings per week.
         2. Continue working with AA sponsor.
         3. Continue antabuse (125 mg.) per 90 days after treatment.
         4. Attend Alumni group at ARD 0930 to 1100, 23, 30 June, 7, 14 Jul 89.
         5. Participate in formalized aftercare at command level.
         6. Report to DAPA within five days of return to duty and present aftercare plan.
          7. Implement su rvival plan.
          Applicant acknowledged having read and understood aftercare plan.

890619:  Applicant released 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 L12 , U SN, with 5.6 years continuous service was admitted to the Alcohol Rehabilitation Department, NHO, CA at command direction with the patient ( A pplicant) ’s concurrence for the first time for the treatment of alcoholism. The patient had previously received level II treatment at Moffett Field. After six weeks of treatment, a staff conference agreed the maximum benefits of treatment had been reached at this time and the patient was considered to have successfully completed treatment.
         The following guidelines were excerpted from OPNAV 5350.4A, in order to assist the patient and his command. Level III treatment included medical evaluation, individual and group therapy, physical fitness, introduction to Alcoholic’s Anonymous and exposure to lecture and audiovisual guidance, motivation and information while in a structured, drug free environment. Sustained participation in Alcoholics Anonymous is strongly recommended and is considered essential in obtaining long-term sobriety. Direct contact with the command DAPA/DACO is required within one week of completion of Level III treatment.
          Although responsibility f or successful rehabilitation lies with the individual, the command can do much in providing firm, understanding support for the rehabilitee. The patient should be acce p ted back into the command without stigma and be assigned meaningful duties commensurate with rate and rating within the constraints of any special programs. The patient should he made aware of the once per career nature of Level III residential treatment. Because of the nature of alcoholism, an isolated relapse involving drinking during the two (2) year monitoring period prescribed by OPNAV 5350.4 does not necessarily constitute failure of the rehabilitation effort. Provided the individual’s record of performance is otherwise satisfactory, it is recommended that such relapse be handled with appropriate disciplinary action, if warranted, coupled with immediate CAAC evaluation and Level II treatment if appropriate. Repetitious or prolonged relapses which do not yield to local counseling, resulting in less than satisfactory performance, may be considered as a failure of rehabilitation and administrative action taken under the provisions of OPNAV 5350.4A.
          The following after-care plan was coordinated with the patient:
         (1) Attend a minimum of 3 AA meetings weekly for one year following discharge from ARD. Sustained participation in AA thereafter is strongly recommended. If available, shipboard AA meetings are recommended. (attendance at AA meetings will not interfere with command operational commitments.)
         (2) Continue working with sponsor at a local AA fellowship.
         (3) Continue Antabuse 125 mg/day for 90 days after treatment. Appropriate liver function tests should be obtained every six (6) months while taking Antabuse.
         (4) Attend alumni groups at alcohol Rehabilitation Department on the following consecutive days from 0930 to 1100 hours 23, 30 June 7, 14 July 89.
         (5) Participate in formalized after-care counseling at command level.
         (6) Patient is to report to Command DAPA within five days of return to duty and present and implement his After-care/Survival Plan.
          (7) Should the Command have any questions, his counselor, T_ C_, can be reached by mail or telephone, (telephone number s deleted).
         Diagnosis:
         1. Alcohol dependence, existed prior to en try with rehabilitation therapy V57.89
                 
891204:  Retention Warning: Advised of deficiency (Minor violations of UCMJ, Article 92: unauthorized BEQ room visitors) . N otified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
900426:  Applicant arrested by Mountain View, CA police for driving under the influence , BAC .16.

900501:  Applicant notified of suspension of driving privileges on board Naval Air Station, Moffett Field for 1 year.

 900530:  Drug/Alcohol Scree n ing/Evaluation , LCDR T. A. D_, MC, USNR.
         DUI , BA C was 0.16 by history. Applicant admits to alcohol abuse. Finished Level III treatment in June 89. Level II April 89. Recommendations:. Recommend administrative separation as per Navy Instructions and alcohol rehab treatment program via VA.
          Diagnosis: Alcohol dependence.
         Plan: Recommend abstinence. 2. AA. 3. VA treatment program upon discharge.
900627:  Civil Conviction : Municipal Court of California, Santa Clara County Judicial District for violation of CVC 23152(B) , DUI (Applicant pled guilty) .
         Sentence: Fine s and court cost of $ 1 ,051.00, three years probation, 72 hours of community service and enrollment in state mandated first offender treatment program (Applicant’s previous completion of Navy Level III treatment satisfied this requirement) .
[Extracted from Court Record and Commanding Officer’s message dated 900802.]

900706 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable conditions by reason of alcohol abuse rehabilitation failure and misconduct as evidenced by commission of a serious civilian offense.

900712 :  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation and to submit written statement .

900712:  Applicant’s statement: During my enlistments in the United States Navy, I now realize and accept that I am an alcoholic. I t has also been pointed out that I am an alcoholic through Level II and Level III treatment programs at Moffett Field and Oaknoll Navy Hospital. When I was sent to these programs, I was very reluctant to admit that I was an alcoholic. I could say that I wa s an alcoholic in public, but could not admit to myself that I was. I’m not sure if you know what kind of decision it is to admit inside that you are an alcoholic, but I can honestly say that it is very tough to do. Admitting that I was an alcoholic and accepting treatment was an admission of w e akness for me. I have been brought up in a society where to admit weakness was to admit defeat. In this respect, I have become headstrong. Admitting that I was an alcoholic was to admit defeat. Even though I worked very hard to do my job to the best of my ability, recently my evaluations began to decline. I have a brother that was diagnosed with H odgkin’s disease at about the same time as my first alcohol incident here at Moffett. Knowing that he had a disease was very hard to accept. But admitting that I had a disease was even harder to accept. It was hard for me to accept alcoholism is a disease. This type of disease is hard for many people to accept, seeing as how many people don’ t accept alcoholism I have had a constant battle with acceptance since attending NADSAP in February 1989. Since the DUI charge I feel that I am not a failure. I feel that this is only a setback in life that can be overcome. I am respectfully requesting another chance to prove that this disease can not only be overcome, but that I can also be of useful service to the U.S. Navy after completi on of a treatment program. If you so decide to uphold naval regulations and administratively separate me, I would greatly appreciate it if you take into account my service in total up to my separation date. I’m sure that you will find that I have had the type of service that would afford me a general or honorable discharge. I have accepted the fact that I have a disease and am willing to attend any treatment program that he U.S. Navy or the Ve t er an s Administration is willing to prov i de me. In closing, I hope that you will consider all aspects of my case when deciding whether to retain or separ a te me. If your decision is for s eparation, I would like to respectfully request that I receive a general discharge or better. I am requesting this so as to retain the benefits of treatment for alcoholism and VEAP program. ”
[ E xtracted from Commanding Officer’s message dated 900802.]
900802 :  Commanding Officer, FASOTRAGRUPAC San Diego, CA , recommended to Commander, Naval Military Personnel Command that Applicant be discharge d by reason of misconduct as evidenced by commission of a serious civilian offense and alcohol abuse rehabilitation failure with a characterization of service as general (under honorable conditions) . Comments of Applicant’s Officer-in-Charge : “ Petty Officer R_ ( Applicant )’s performance has been without a doubt equal in caliber to that of our best second class petty officers. While in the workplace he has demonstrated the dedication and zeal consistent with attaining the goals of this detachment. Unfortunately, his sense of responsibility and judgment while off-duty has been adversely affected by intemperance and inability to come to terms with alcohol abuse. It is my firm conviction that P etty O fficer R_ can be of benefit to the U. S. Navy but only after extensive rehabilitation through a prescribed VA hospital program. We have recognized this S ailor’s chronic problem with alcohol for nearly two years. Even comp eling his participation in Level III treatment in an effort to preclude serious disciplinary situations. A number of these incidents have been very close to bringing him to NJP/court martial proceedings. His actions throughout this period indicate he cannot be trusted to clean up his act. He certainly has been given every opportunity to do so. Accordingly, it is most highly recommended in the strongest terms that Petty Officer R_ be administratively discharged from the naval service with a general discharge and retention of benefits qualifying him for VA treatment of his alcoholism. It is further recommended that subject to successful treatment that he be considered for re-enlistment in the naval service. ” Commanding Officer’s comments: “Concur with comments of the OIC. Recommend member be immediately discharged from the naval service with a general discharge.

900817 :  C ommander, Naval Military Personnel Command directed the Applicant 's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

900829:  Applicant found medically qualified for separation.

 900905:  Applicant notified of being administratively discharged due to misconduct and civilian conviction (DUI on 900426). In accordance with article A1.0323 of the Enlisted Transfer Manual, Applicant offered the opportunity to receive a minimum of 30 days in-patient treatment at a Veterans Administration Hospital. Applicant elected treatment.
901024:  Applicant notified of being administratively discharged due to misconduct and civilian conviction (DUI on 900426). In accordance with article A1.0323 of the Enlisted Transfer Manual, Applicant offered the opportunity to receive a minimum of 30 days in-patient treatment at a Veterans Administration Hospital. Applicant did not elect treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19901031 by reason misconduct due to civil conviction (A and B) with a service characterization of under other than 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 implies that his discharge was inequitable because it did not take into account his entire service and that other servicemembers were punished less harshly for similar misconduct. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The evidence reviewed supports the conclusion that the Applicant received a civil conviction for DUI (a serious offense under Article 111 of the UCMJ for which a punitive discharge is authorized if convicted at special or general court-martial), that separation from the Naval service was appropriate, and that an other than honorable discharge was permitted. Applicant had every opportunity to contest the discharge and the characterization but chose to waive his right to an administrative discharge board, and thus exposed himself to the possibility of an unfavorable characterization of service. As such, relief is denied.

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 or inequity 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. Verifiable proof of any 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. Relief denied.

The following is provided for the edification of the Applicant. The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560A, Change 8, effective
21 Aug 89 until 14 Aug 91) Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON 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 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

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