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

 
ex-EN3, USN
Docket No. ND04-00553

Applicant’s Request

The application for discharge review was received on 20040220.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “END OF TERM.”  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041222.  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  and reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The undesirable discharge is unwarranted due to the fact that the incidents that occurred (DUI), at no time affected or interfered with my duties or my job performance.”

2.  “The 1st DUI in Jan 1992, I was sent to CO mast and recieved my punishment  This was the first incident of my enlistment that would be entered into my record.  This did not affect my duties or my job performance for it occurred on my weekend off.  I then changed commands and without incident, was diagnosed alcohol dependent.  I was forced to attend CAAC level III inpatient rehab against my will.  I was in denial of my alcohol dependence.”

3.  In Jan of 1994 I recieved a DUI by the civillian authorities.  Same as prior incident.  Did not affect my duties or job performance for it occurred on my weekend off.  I asked for help with alcohol dependence and was denied.  I was then informed that I was being discharged.”

4.  “In March 1994 recieved 2nd DUI by civilian authorities.  Again did not affect my duties or job performance.  It occurred on my weekend off.  I again asked for help and again was denied.  I was then notified of an OTH diascharge.

5.  “Upon release from my command, sought and finally received help for alcohol dependency through a VA facility.  I completed the program and I finally succeded in becoming independent from alcohol.  At this time, I was discharged form active duty.”

6.  “I feel that the incident that led to CO mast is most important here.  My later DUI’s only dealt with civillian authorities and at no time affected or kept me form performing my duties as a Petty Officer in the United States Navy.  I asked for help with my problem and was denied.  I served 4 years 1 mo.  I lived up to my commitment of service and therfore I feel i deserve an Honorable discharge.”

Submitted by Applicant subsequent to submission of application:

1.  “I am writing to you today to inform you on the accounts that led to my discharge from active duty in the U.S. NAVY.  In January 1992, while serving abroad in Guam, U.S.A., onboard the USS Proteus (AS-19), I was charged by the Naval Station Police with a DUI.  The only damage in this incident was to my car.  I was not absent from work nor did it affect my performance or duties.  After this incident, I was sent to CO mast and accepted my punishment.  (this is the first incident in 18 months of service) I was considered alcohol dependent by the command DAPA.  Months passed and the alcoholism issue was dropped.

I was then transferred to my next duty station the USS Holland (AS-32) where without incident, was again diagnosed alcohol dependent by the command DAPA.  In my denial stage. I disagreed with their diagnosis and was forced to attend an inpatient treatment program (CAAC Level III) against my will.  I attended and completed the program the whole time just dying to get out.  I felt that I did not belong there and I didn’t have a problem.  In February 1992, I was diagnosed cured and released.

In January 1994, while serving onboard the USS Fort McHenry (LSD-42) I was charged by the civil authorities with a DUI.  Once again this did not affect my duties or job performance for it happened on my weekend off.  Realizing I might have a problem, I asked my command for help to seek treatment.  They denied my request and informed me that I was being discharged.  In March 1994, I was again charged by the civil authorities with a DUI.  Again this was my time off so it didn’t affect my job except for some embarrassment.  I again asked for help and again I was refused by my command.  I was informed again that I was being discharged from active duty.  Prior to me being discharged, I was approached by the Command Master Chief He asked if I was really serious about getting help with my alcoholism that I could attend a voluntary program offered at the VA Hospital in Long Beach, CA.  I agreed.  I attended the program focused and determined to get this problem under control.  I completed the program with the help and support of my family.  I finally succeeded and was released with good spirits.  At the completion of this program, in July 1994, I was discharged from active duty with an OTH discharge.

Since the day that I attended the VA program, I have been alcohol free.  Realizing the consequences of this abuse, I decided that being in control of my life was more important than this addiction controlling me.  I also attended and completed a State of California program for reassurance and also to get my driving privilege back

During my 4 years of service, I feel I did my job and served very proudly. I never had any instances of being disrespectful to any of my superiors.  I am very grateful for the education and growing experience that I was given by the Navy.  I appreciate the opportunity that I was given a chance to serve in the best Navy in the world.  I feel I served honorably and deserve my VA benefits.  My being alcohol dependent and finally getting the help I needed (a little too late) I feel is no grounds for denial of my VA benefits.  I know that a DUI is a serious offense but it was a consequence of the alcoholism I was fighting with.  It’s not an excuse but I’m hoping it will let you see what I was dealing with.  I hope you will consider my case and thus giving me and my family a chance to utilize the benefits that I earned for the 4 years of my life that I gave to the Navy and to his great and wonderful country we live in.”

2.  “I apologize for taking so long to respond to your request.  I want to inform you as to what has been going on in my life since my discharge.  First I want you to know that I am married.  I currently have 4 children and 1 more on the way due in November.  I know it has been 10 years since the discharge but I wanted to have my life in order before I petitioned to have my discharge reviewed and hopefully changed.  My life has been alcohol free for quite some time now.  I have volunteered for various committees.  I was on the Fiesta Staff for the annual fiesta and fair at Nativity Catholic School in Torrance, CA. for 3 years.(1998-2000) I also was an assistant coach for the flag football team at St Philomena School in Carson, CA.(2003-2004).  This upcoming school year I am being asked to be the head coach.  I was also asked to be a troop leader for NLCC Navy League Cadet Corps. at the Coast Guard base in San Pedro, CA.  I am telling you all this information to let you know that I am a new person who has matured into a well mannered member of society.  I know I had problems in the past but as I see it, it is in the past.  I feel I have been punished with the shame of being forced out of the NAVY with an undesirable discharge for a long time now.  I have recently lost my job due to a back injury and I am returning back to school to further my education and I would really appreciate the privilege to be able to use the GI bill to pay for my education since at my present time I cannot afford it.  I served my country and the Navy for 4 years very proudly.  I hope you can find it in the kindness of your hearts to reverse my discharge and allow me to use the benefits that I traded for 4 years of my life.”

Documentation

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

Applicant’s DD Form 214
Statement of Patient’s Treatment
Discharge Summary (2 pages)
Notice of Completion, Southwest Driver Benefits Program
TEMADD Travel Orders, Veteran’s Administration Medical Center, Long Beach, CA
Service Record Documents (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	891021 - 900617	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  900618		Date of Discharge:  940706

Length of Service (years, months, days):

	Active:    04  00  19
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  77

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.55 (4)	Behavior:  3.35 (4)		OTA:  3.6

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR, MUC, NER, SWAS (Desert Storm/Shield w/ Two Bronze Stars), KLM (Saudi Arabia), KLM (Kuwait), CAR, CGSOSR

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

920207:	NJP for violation of UCMJ, Article 86:  Failed to report to appointed place of duty on 920126, violation of UCMJ Article 111:  Operated a motor vehicle while intoxicated.
	Award:  Forfeiture of $492.00 per month for 2 months, reduction to E-3.  No indication of appeal in the record.

930106:	Medical Screening:  Applicant diagnosed as alcohol dependent, elected Level III CAAC treatment.

930106:	Retention Warning:  Advised of deficiency (Failure to report to appointed place of duty and driving a vehicle while intoxicated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning [extracted from CO’s letter]. 

930205:	Applicant completed Level III treatment program.  Applicant ordered to report to DAPA for aftercare treatment.

940128:	DAAR Medical Screening:  Petty Officer G_ was medically diagnosed as alcohol dependent on 930106, he was released from Level III treatment on 930205, and placed into aftercare.  Member was evaluated at that time as having good potential for future service.  However, based upon Petty Officer G_’s continuation of drinking; as evidenced by his civilian DUI arrest on 940122, Petty Officer has been found to have no potential for further service.

940331:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

940331:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant objected to the separation.

940405:	Probation Order:  Applicant convicted of a misdemeanor violation of Section 23152(b) of the California Vehicle Code and sentenced to 3 years probation.

940415:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to civil conviction, and alcohol abuse rehabilitation failure as evidenced by three DUI’s in current enlistment.

940512:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to civil conviction, and alcohol abuse rehabilitation failure as evidenced by three DUI’s in current enlistment.

940523:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940606:	Applicant completed treatment program through VA Hospital, Long Beach, CA.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940706 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

Issues 1 through 6:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant repeatedly contends that his misconduct occurred on his weekends off and therefore did not affect his work performance.  The record indicates that the Applicant was awarded NJP for a violation of UCMJ Article 111, Drunken operation of a vehicle.  The record further indicates that the Applicant was convicted twice for drunken driving in the state of California.  The UCMJ is a statute of universal jurisdiction and application as applied to members of the United States Armed Forces.  An active duty member of the United States Navy is compelled to obey the restrictions of the UCMJ regardless of leave or liberty status and regardless of worldwide location.  The Applicant, like all other active duty service members, is accountable under the UCMJ for his actions regardless of when or where they occur.  As such, there was nothing improper or inequitable in the Navy’s decision to process the Applicant for discharge based upon both his civilian and military misconduct.  The fact that his misconduct did not affect his work performance or impact his command does not relieve the Applicant of liability for his crimes, but only serves to mitigate his misconduct.  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.  As noted above, the Applicant was convicted twice by civilian courts for DUI offenses and awarded NJP for a violation of UCMJ Article 111, Drunken operation of a vehicle.  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 denied.

The Applicant also contends that he was improperly denied treatment for his alcohol abuse.  The evidence of record does not support the Applicant’s claims.  Contrary to the Applicant’s claims, the record indicates that the Applicant successfully completed Level III CAAC treatment from 930106 through 930205 and was subsequently placed in a one-year aftercare program.  The record further reveals that this aftercare treatment was violated by the Applicant’s continued alcohol related misconduct in early 1994.  Prior to discharge, the Applicant completed another alcohol rehabilitation program at the VA Hospital in Long Beach, CA.  The record is clear that the Applicant was afforded all of the rights available to him under Naval regulations, including Level III CAAC treatment, an aftercare program and further treatment prior to discharge via the VA.  The Applicant’s argument is without merit.  Relief denied.

Subsequent issues 1 and 2:  The Veterans Administration determines eligibility for post-service benefits not the Navy 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.  

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, however, 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 documentation for the Board to consider.  Relief denied.

A "serious offense" is defined by the MILPERSMAN as an offense under the UCMJ for which the Manual for Court-martial authorizes a punitive discharge.  A wide range of UCMJ offenses meet this criteria, including disrespectful language, failure to obey a lawful order or written regulation, such as not maintaining hair within standards, drunken driving, forgery, missing ship's movement, unauthorized absence for 30 days or more, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder.  A person in the military must abide by the standards as set forth in military regulations and laws, regardless of what guidelines his civilian counterparts might utilize.  The summary of service clearly documents that commission of a serious offense was the reason the applicant was discharged.  No other Narrative Reason for Separation more clearly describes why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief based on this issue is not warranted.

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 other evidence related to his discharge at that time.  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), Change 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 111, Drunken or Reckless Operation of Vehicle, Aircraft, or Vessel, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  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