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

 ex-RMC, USN
Docket No. ND99-00955

Applicant’s Request

The application for discharge review, received 990709, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the government/reenlistment code to RE-1 and separation code to LND.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000417.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

The NDRB did note an administrative error on the original DD Form 214.  Block 25,  Separation Authority should read:  “NAVMILPERSMAN, Article 1910-142” vice “MILPERSMAN 3630605”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  On May 31st of 1997, while near my wife's apartment in Yokosuka Japan, I moved my vehicle out of an unsafe position in the street.  My BAC was measured at .06 after being arrested and tested by naval security personnel.  In accordance with (IAW) OPNAVINST 5530.4b, part of my command's responsibilities were to have me immediately screened for alcohol dependency and to help me.  They failed to do that.  In fact, command has no intentions of offering me a chance at rehabilitation.  My commanding officer was clearly bias going into my case, having been conditioned so by a previous alcohol related accident (enclosure 1, page 15, para. 7 refers).  My screening didn't take place until July of 1997 and despite the numerous requests for help made by my wife and I (enclosure 1, pages 8-10 refer), I wasn't allowed to attend the navy's alcohol recovery program until February of 1998.  I sincerely believe that had my command acted as directed by instructions, had they offered me any measure of assistance or support, a second alcohol related accident on July 11th of 1997 would not have occurred.  In addition to being impaired by alcohol during this period, I was in the middle of a divorce, both my parents had disabling medical problems and were hospitalized, financial commitments were getting out of hand and I acquired four new and very demanding command level jobs (immediately prior to a major command inspection) which tasks my resources even further because they had been neglected so badly prior to my obtaining them.  At the time, I was simply unequipped to handle stress of the magnitude that resulted.  The navy's recovery program was extremely beneficial to me in this respect.  While a patient in recovery, I became a role model for others, completed it ahead of time and have been in control of myself since (enclosure 1, pages 1-7 are performance comments from supervisors).

2: After having endured a court martial on December 16th of 1997 and an administrative board on January 30th of 1998, both recommending, my retention in the U.S. Navy for the alcohol related accident on July 11th of 1997, I was discharged on July 9th of 1998 as a result of the recommendations of a second board.  When I requested assistance from my Congressman (B_ T_), the response was that my recommended retention in the U.S. Navy by the first administrative board was unlawful.  The first admin board was determined to be unlawful because my command did not want to wait for the certification of the record of trial as required by the Navy regulations.  Being that as it was, they attempted to prove the charges again at the admin board.  The three member panel were so outraged at the commands lack of responsibility that they voted the way in which they did.  After the admin board, the senior member, a line officer Captain who worked at SUBGROUP 7, personally had words for the OIC of the NAVCOMTELSTA FE.  If this board is illegal, then the second board was even more illegal in that I was not allowed legal counsel or any opportunity of responding to the second decision in violation of my rights.  Furthermore, IAW Naval Military Personnel Manual, section 3640350, para. 2, a board is not a judicial body so how can it's decision be legally considered lawful or unlawful? (enclosure 1, pages 11-1 4 refer).

3.  IAW Naval Military Personnel Manual, section 361020O, para. 5, my command had no basis to institute an administrative board on January 30th of 1998.  The findings of my court martial had not as of yet been certified or approved by the convening authority (enclosure 1, page 16 refers).  Consequently, 

4.  My undesirable discharge is unfair because it is based on only one accident in 17 years of loyal and dedicated service and because it forces me into paying too high a price for that mistake.  In no other organization (military or civilian) would a similar case be confronted with such abrasive patterns of thought and dismissed with such lethal consequences by the employer.  I am being asked to disregard 17 years of my life, to give up all of the benefits and privileges that I've worked so exhaustingly for because of one mistake.  Aside from one very minor injury resulting from my accident, noone was hurt.  Why am I paying for the rest of my life for that?  Over the next 23 years, I stand to loose over $600,000.00 and after 17 years of dedicated service (three personal achievement medals) to my country and my navy, I can not even visit a naval base.  It's not fair.

5: Considering in your deliberations, all of the evidence indicated in the above issues, I respectfully request that I be reinstated into the U.S. Navy.  If I am not allowed to reenter the service on active duty, request an upgrade in discharge characterization from a General Under Honorable Conditions Discharge to an Honorable Discharge Characterization IAW Naval Military Personnel Manual, section 3610300, para.3, subpara.2. Additionally, request a change in my reason for discharge to one relative to "For the Convenience of the Government."

Documentation

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

Character/job reference dated 17 June 1999
Character/job reference dated September 28, 1999
Character reference dated 16 June 1998
Character reference from CWO2
Character reference dated 10 June 1998
Character reference dated July 17, 1997
Character reference dated 5 March 1992
Statement from applicant's wife
Applicant's request for CAAC dated September 16, 1997
Applicant's request for CAAC dated November 21, 1997
Two pages from administrative discharge board
Copy of Judge Advocate Review dated 12 June 1998
Letter from congressman dated July 20, 1998
Seventy-two pages from applicant's service record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		850812 - 891206	HON
		   USN			810803 - 850811	HON
	Inactive: USNR (DEP)	801231 - 810802	COG

Period of Service Under Review:

Date of Enlistment:  891206		Date of Discharge:  980709

Length of Service (years, months, days):

	Active:    08  07  04
	Inactive:  None

Age at Entry:  17			Years Contracted:  6 (39 months extension)

Education Level:  12			AFQT:  44

Highest Rate:  RMC (SW)

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (7)	Behavior:  4.00 (7)		OTA:  4.00	4.0 EVALS*
Performance:  3.00 (3)	Behavior:  3.00 (3)		OTA:  3.43	5.0 EVALS*

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, CGSOR, SSDR (3), NUC, NAM (3), GCM (4), NDSM, OSR (6), SASM

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

971209:	Applicant examined 26Nov97 and 9Dec97.  Applicant referred to Mental Health Clinic for an evaluation of possible memory learning, and concentration difficulties.  Diagnosis:  Alcohol dependence (in full remission) per medical record, Attention deficit hyperactivity disorder-predominantly inattentive type (provisional).  Axis II:  No diagnosis or condition deferred on Axis II.  Recommendations: 1. In order to develop a firmer diagnosis of an ADHD, further testing is warranted.  The patient may contact Dr. R_....for such testing.....  

971216:	Special Court Martial
	Charge I: violation of the UCMJ, Article 111 (2) Specifications).
	Specification:  Drunken or reckless operation of a vehicle on 10 July 1997.
	Charge II: violation of the UCMJ, Article 134 (2 Specifications):
	Specification: (General article) Leaving the scene of an accident on 10 July 1997.
	Findings:  to Charge I and II  and specifications thereunder, guilty.
	Sentence:  Restriction for 60 days, forfeiture of $167 per month for 6 months and to be repreimanded..
	CA 980606:  Sentence approved and ordered executed, except for bad conduct discharge.

971222:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

971223:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

980109:	NCTS FAR EAST advised BUPERS of incident of auto accident with 
DWI involving E-7 and that member convicted at SPCM.

980116:	BUPERS acknowledged information and requested if civil or military action has been taken, or is anticipated.

980121:	NCTS FAR EAST advised BUPERS that adsep proceedings are being taken at this time, but no civil action is anticipated.

980130:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the applicant had not committed a serious offense, and recommended retention.

980305:	Commanding officer recommended, at a minimum, applicant be retired under the Temporary Early Retirement Authority (TERA).  Commanding officer’s comments (verbatim):  I have lost complete confidence in Chief   Petty Officer (applicant's) ability to lead our sailors.  He is an unacceptable role model who has failed to live up to the Navy's Core Values and to be a productive member of the United States Navy.  When Chief Petty Officer (applicant) intentionally violated the Uniform Code of Military Justice, Article 111 (Drunk Driving with injuries) and Article 134 (leaving the scene of an accident), he clearly exhibited poor judgement and unacceptable behavior for a member of the United States Navy and more importantly unacceptable behavior for a Chief Petty Officer.

	It is apparent my perspective of the seriousness of his actions and its long-term effects on our Navy differs from that of the Military Judge and the members of the Administrative Board.  If they had experienced the loss of a Sailor to a drunk driver or seen the loss to the Navy in terms of productivity and influence on command morale they too might agree with my recommendation.  Retaining such a member who cannot perform as a leader, serve as a favorable role model and live up to the command morale and mission accomplishments. Considering all these facts I recommend Chief Petty Officer (applicant), at a minimum, be retired under the Temporary Early Retirement Authority (TERA).

980521:	CNP forwarded recommendation for separation for misconduct due to commission of a serious offense to Assistant Secretary of the Navy (Manpower & Reserve Affairs).  Comments: RMC(SW) (applicant) was convicted at a special court-martial (SPCM) for violation of UCMJ Article 111 (two specifications of drunk driving with injuries) and Article 134 (two specifications of leaving scene of an accident).  An administrative board found that he had not committed misconduct due to commission of a serious offense and recommended retention.  However, courts-martial convictions are binding on administrative board proceedings.  The Commanding Officer did not concur with retention but recommended he be retired under the Temporary Early Retirement Authority (TERA).  The Chief of Naval Personnel does not support the option for TERA as an alternative.

	RMC (SW) (applicant) fell asleep while driving intoxicated (.24 BAC) and collided with five vehicles, causing injury to two Japanese nationals.  One received a cervical strain and the other contusions to the abdominal area requiring two weeks and 78 days of medical treatment respectively.  In addition, he fled from the scene of the accident twice.  Just six weeks earlier, he was charged with an alcohol related simple assault (domestic in nature) and driving under the influence (.06 BAC).
 
980529:	Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved discharge.

980602:	BUPERS directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980709 general (under honorable conditions) for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 NDRB found the applicant’s first issue stating that his misconduct was the result of the Navy’s lack of treatment for his alcoholism without merit.  Relief is not warranted.

The NDRB found the applicant’s second issue without merit.  The applicant was in fact convicted at a Special Court Martial of UCMJ violations for Article 111 (2 Specs of Drunken or reckless driving) and Article 134 (2 Specs of Leaving the scene of an accident).  Following the conviction at Special Court Martial, the Administrative board’s determination that no misconduct had occurred was improper.  The applicant’s discharge was properly directed by the ASN.  Relief is not warranted.

The NDRB found no impropriety in the applicant’s third issue regarding the discharge.  Relief is not warranted.
 
Regarding the applicant’s fourth issue the NDRB found the significant negative aspects of the applicant’s misconduct outweighed his otherwise creditable service.   Relief is not warranted. 

Concerning a reinstatement on active duty, issue five, the NDRB has no authority to reinstate, change RE Codes, or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  Additionally, the NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that misconduct was the reason the applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  Relief denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)
A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until Present, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023