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

 ex-LCDR, USN
Docket No. ND04-00639

Applicant’s Request

The application for discharge review was received on 20040309.  The Applicant requested the characterization of service received at the time of discharge be changed to honorable and the narrative reason for the discharge be changed to Secretarial Authority.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed civilian counsel as her representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041104.  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)/MISCONDUCT, authority: BUPERS ORDER 1682 OF 17 Jun 02 and SECNAVINST 1920.6B.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and counsel (civilian counsel):

“1.  Whether Applicant’s alcohol abuse was the direct causation of alleged misconduct.

2.  Whether Applicant was an impaired health care provider who should have been given treatment and supervision rather than disciplinary action.

3.  Whether Applicant’s service was properly characterized given her duty performance.

4.  Whether enough was done to rehabilitate Applicant prior to a Board of Inquiry.

5.  Whether a Board of Inquiry was proper in view of the Applicant’s status as an impaired healthcare provider.”

Additional issue submitted verbally by the Applicant during the personal appearance proceedings:

6.  “Would like to rekindle a military nursing career in some capacity in the reserves or in another service.  Would love to come on active duty and continue my naval services.”

Documentation

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

Applicant’s DD Form 214 (Member-1)
Three pages from Applicant’s medical record
Two pages from Drug and Alcohol Program Advisor Administrative Screening
E-mail concerning Thanksgiving incident, dated February 15, 2001
Two Fitness Report & Counseling Records (Period 00AUG10 to 00FEB14 and 01NOV01 to 01JUL19)

Additional documentation presented to the Board for consideration during the personal appearance hearing and the subsequent deliberations.

Fitness Report – Period of Report 01 NOV 01 to 02 JUL 19
Board deliberations and exhibits (75 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR		890911 - 890922	COG

Period of Service Under Review:

Date of Appointment:  890923		Date of Discharge:  020731

Length of Service (years, months, days):

	Active:    12  10  09
	Inactive:  None

Age at Entry:  31			Years Contracted:  8

Education Level:  16

Highest Grade:  LCDR

Final Officer Performance Evaluation Averages:  All officer performance reports were available to the Board for review.

Military Decorations:  NAM

Unit/Campaign/Service Awards:  NUC, NDSM (2), SASM (2), HSM, SSDR, N&MCSR (5), KLM (Saudi Arabia), Flag Letter of Commendation

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  BUPERS ORDER 1682 of 17 Jun 02 and SECNAVINST 1920.6B.

Chronological Listing of Significant Service Events:

960912	Successfully completed Alcohol and Drug Abuse Managers/Supervisors Training Course at Naval Hospital Guam.

010514:	Applicant completed Level II alcohol rehabilitation treatment at ATF, Rota, Spain.

010611:	NJP for violation of UCMJ, Article 133: Conduct unbecoming an officer; violation of UCMJ, Article 134 (2 specs): Drunk and disorderly conduct and drunkenness – incapacitation for performance of duty through prior wrongful indulgence in intoxicating liquor.
	Award: Reprimand in writing.  No indication of appeal in the record.

010612:	Punitive letter of reprimand issued.

010613:	Applicant appealed the nonjudicial punishment.

010627:	Commander, Fleet Air Mediterranean, denied Applicant’s appeal.

010710:	Applicant’s statement in response to punitive letter of reprimand.

010725:	CO, U.S. Naval Hospital, Naples, forwarded Applicant’s report of nonjudicial punishment to CNPC recommending Applicant be required to show cause for retention.

010802:	Applicant’s statement in response to NJP to show cause for retention.

010813:	NJP (Admiral’s Mast) for violation of UCMJ, Article 133: Conduct unbecoming an officer; violation of UCMJ, Article 134 (2 specs): Threat, communicating.
	Award: Punitive letter of reprimand, forfeiture of ½ months pay for 2 months (suspended for 6 months) and restriction for 14 days.

010823:	Punitive letter of reprimand issued.

010828:	Applicant appealed her nonjudicial punishment.

010927:	Applicant advised of denial of appeal of her nonjudicial punishment.

020117:	Successfully discharged from alcohol abuse continuing care program.

020314:	Board of Inquiry: By votes of 3-0, the Board found that Applicant committed the misconduct alleged, failed to demonstrate acceptable qualities of leadership and that she failed to conform to prescribed standards of military deportment.  By votes of 3-0, the Board recommended separating Applicant from the naval service with a general discharge.  [Extracted from CNP’s ltr of 020419.]

020419:	CNPC recommended to the Secretary of the Navy that Applicant be discharged with a general characterization by reason of misconduct due to the commission of a serious offense.

020611:	Assistant Secretary of the Navy (M&RA) approved Applicant’s discharge.

031229:	NDRB documentary record review Docket Number ND03-00468 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020731 with a characterization of 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).

Issues 1 and 2:  In the Applicant’s case, the Board discovered no impropriety or inequity; thereby, considering her discharge to be proper and equitable.  While she may feel the trauma of her personal loss was a contributing factor to her alcohol abuse, it does not mitigate the Applicant’s disobedience of the orders and directives regulating good order and discipline in the naval service.  The Applicant contends her alcohol abuse was the causation of her misconduct.  While this contention may have validity, voluntary intoxication does not constitute a defense of the Applicant’s misconduct.  The record does not support the allegation of wrongdoing and leadership failure on the part of the command with regard to the events, which lead to her suitability for duty physical.  At 0645 on a day of duty, which she testified to knowing it to be a day of duty, she reported to her appointed place of duty with a Blood Alcohol Concentration (BAC) of .158 (extracted from the Administrative Discharge Review Board’s Report of Findings and Recommendations).  As such, the relevance of the Applicant’s purported alcohol problem extends only to mitigation of her misconduct.  The record of evidence is clear the Applicant was intoxicated the evening prior to a scheduled day of duty and when she reported for duty, albeit earlier than she was originally scheduled, she was still intoxicated and thus in violation of UCMJ Article 134.  The Board agrees with the testimony that the Applicant was “very intoxicated” and “more than drunk.”  The evidence of record does not demonstrate the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Furthermore, the Applicant contends she should have received treatment rather than disciplinary action as a result of her alcohol abuse.  Treatment and discipline are separate and distinct within the military setting and are not mutually exclusive.  That is to say, a member who commits misconduct as a result of a substance abuse problem generally is offered treatment for the condition and can be awarded punishment for the misconduct.  As such, there is nothing improper or inequitable with the Applicant receiving punishment as a result of her misconduct along with treatment for alcohol abuse.  Additionally, the Applicant’s testimony during the personal appearance hearing supports the record, in contradiction of the additional documentation submitted to the Board, that the applicant consumed both wine and schnapps at the Thanksgiving celebration labeled the “Thanksgiving Incident.”  It is not within the scope or charter of this Board to retry nonjudicial punishment (NJP) proceedings.  As such, this Board presumed regularity in the conduct of governmental affairs and the Applicant’s discharge was proper in all respects.  The Applicant’s service record is marred by the award of NJP on two separate occasions substantiating the misconduct for which she was separated.  The record contains no evidence of any wrongdoing by the Applicant’s command or anyone else in the discharge processing.  No other Narrative Reason for Separation or Character of Service could more clearly describe why the applicant was discharged.  To change either would be inappropriate.  Relief denied. 

Issue 3:  The Applicant contends her service was improperly characterized given her duty performance.  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.  A 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 two nonjudicial punishment proceedings for violations of Articles 133 and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization service.  Relief is not warranted.

Issue 4:  Normally, to permit relief, an error or injustice must have existed during the period of service in question.  No such error or injustice occurred during the Applicant’s service.  The allegations that the Applicant was not “given treatment” or that “enough was (not) done to rehabilitate” her are not supported by the record.  The command “did the right thing,” as pointed out by the Applicant’s counsel, by sending her to the appropriate level of treatment for her diagnosed condition of alcohol abuse.  By her own testimony, as emphasized by her counsel, the Applicant has not had another incident since she completed her aftercare program.  The NRDB found the Applicant’s service was equitably characterized.  Relief denied.

Issue 5:  The Applicant contends that a Board of Inquiry was improper given the Applicant’s contention she be viewed as an “impaired healthcare provider.”  Applicable regulations permit the NDRB to upgrade a service characterization if the discharge, as issued, is improper or inequitable.  While these standards can be construed broadly to effect relief, they do not permit the NDRB to substitute its judgment for that of the show cause authority.  The relevant issue in this Board’s determination is the question of whether or not the decision to have the Applicant appear before a Board on Inquiry was in anyway improper or inequitable as defined by naval regulations.  A careful review of the testimony, documents and other evidence presented in this case have satisfied the Board that there was nothing improper or inequitable in ordering the Applicant to appear before a Board of Inquiry.  As such, relief is denied.

Issue 6:  Concerning the Applicant’s desire to return to “active duty and continue (her) naval services,” the NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code (when applicable) is, in itself, a bar to reentry into military service.  A request for waiver is normally done during the processing of a formal application for enlistment or commissioning through a recruiter.  This issue does not serve to provide a foundation upon which the Board can grant relief.

The NDRB has no authority to provided additional review of this case since the Board has reviewed Applicant’s discharge on two separate occasions.  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 she desires further review of her case.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B.  Secretary of the Navy Instruction 5420.1 74C 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 5420.1 74C 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 5420.1 74C 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

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