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

 ex-MM3, USN
Docket No. ND04-00647

Applicant’s Request

The application for discharge review was received on 20040309.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041103.  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)/ALCOHOL REHABILITATION FAILURE, authority: MILPERSMAN, Article 1910-152 (formerly Article 3630550).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The reason for the request of upgrade – educational Benefits.  I feel I deserve upgrade to Honorable Based on work performance aboard USS Santa Fe from 9-98 to 12-2002.  I have not had any problems from alcohol.  I have not drank since military discharge.  Please consider Lay letters attached in support of my request  Thank you!”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

In accordance with 32 C.F.R., section 724.166, and SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflect that this former member maintained satisfactory performance and conduct markings with a 3.3 OTA and earned the NER, NEM (2), NDSM, AFEM (2), CCMUC, SSDR, RMR and ESWI.  He was awarded NJP on 981212 for VUCMJ, Arts. 86, 108; NJP on 990203 for VUCMJ, Art. 86 and NJP on 011004 for VUCMJ, Art. 86.  On 001002, he was screened as alcohol dependant and referred for treatment but did not complete the program successfully.  We note his CO’s recommendation for an HD.  Following due process notifications, he discharged General (Under Honorable Conditions) due to alcohol rehabilitation failure as authorized by NAVMILPERSMAN, Art. 3630600.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because it is too harsh in light of his overall service record and so that he can use his MGIB benefits.  He has submitted 4 pages of additional documentation indicating Congressional interest and attesting to his good post-service character and hard work for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553, and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1). 

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Letter from Navy Personnel Command to United States House of Representatives, dated February 10, 2004
Character reference from Applicant’s parents, dated March 28, 2003
Job/character reference, dated March 31, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960930 - 970209	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970210		Date of Discharge:  021220

Length of Service (years, months, days):

	Active:    05  10  11
	Inactive:  None

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

Education Level:  12			AFQT:  96

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.67 (3)	Behavior:  2.33 (3)		OTA:  3.30

Military Decorations:  None

Unit/Campaign/Service Awards:  NER, NEM (2), NDSM, AFEM (2), CGMUC, SSDR (2), RMR, Flag LOC, ESWI

Days of Unauthorized Absence:  3

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

GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority:  MILPERSMAN, Article 1910-152 (formerly Article 3630550).

Chronological Listing of Significant Service Events:

981210:	Applicant to sick call for competency for duty evaluation:  A: ETOH intoxication.  Applicant found not fit for duty until cleared by ship’s physician.

981218:	NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 108: Damaging, destroying or losing military property.
	Award: Forfeiture of $400 per month for 1 month, restriction for 30 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

990202:	Applicant to sick call for competency for duty evaluation.  A: Acute alcoholic intoxication.  P:  Referred to Squadron MO.

990203:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $500 per month for 2 months, restriction for 14 days, reduction to E-2.  No indication of appeal in the record.

990204:	Retention Warning: Advised of deficiency (CO’s NJP of 981214 for violation of Article 86 and Article 108.  CO’s NJP of 990203 for violation of Article 86.  Other alcohol related lapses of judgment which resulted in formal counseling.)  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990603:	Applicant completed early Intervention/Alcohol Impact treatment.  

001002:	Applicant began intensive outmember treatment due to diagnosis of alcohol dependence.  

001103:	Transitioned to continuing care treatment.  Applicant has received the maximum benefit from treatment and has been discharged due to return to drinking and lack of motivation to make lifestyle changes consistent with treatment goals.

011004:	NJP for violation of UCMJ, Article 86: Absence without leave.
	Award: Forfeiture of $300 per month for 1 month, restriction for 30 days, reduction to MMFN.  Reduction suspended for 6 months.  No indication of appeal in the record.

011121:	Counseling and Assistance Center:  Diagnosis: Alcohol dependence, with physiological dependence.  Prognosis for the future is poor.

020614:	Record of Medical Care: Applicant to have acute alcoholic intoxication.  Unfit for duty due to ETOH abuse.

020814:	Request for waiver for Applicant to attend a second Level III rehabilitation. Commanding Officer's comments: Petty Officer K_ (Applicant) continues to be a vital member of the ship and the Torpedo Division.  He is recognized as a technical expert in Torpedo Division Maintenance and Conventional Weapons Handling.  I believe Petty Officer K_ (Applicant) now recognizes he has a serious problem and he desires treatment.  Further, he has been the fulcrum of success in an under manned division during an extended and highly demanding shipyard availability.  I believe we, the Navy, owe Petty Officer K_ (Applicant) a second chance with professional treatment.  I strongly endorse his retention and highly recommend approval of this waiver for his treatment.

021105:	COMNAVPERSCOM denied waiver request.

021126:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense and alcohol abuse rehabilitation failure.

021126:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

021206:	Commanding Officer, Naval Submarine Support Command, Pearl Harbor, HI directed the Applicant's discharge with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure.

030114:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure and misconduct due to commission of a serious offense.  Commanding Officer’s comments (verbatim): MMFA K_ (Applicant) is being processed for alcohol abuse rehabilitation failure and misconduct due to commission of a serious offense. MMFA K_ (Applicant) was found guilty at three separate NJP's listed above.  MMFA K_ (Applicant) has been given numerous chances to conform to military standards. MMFA K_  (Applicant) was screened for alcohol dependency on 2 October 2000 and was transitioned to Continuing Care Treatment on 3 November 2000. MMFA K_ (Applicant) did not complete alcohol abuse rehabilitation treatment. On 14 August 2002, the Commanding Officer, USS SANTA FE submitted a request for waiver on MMFA K_ (Applicant). Reference (9) denied this wavier. This type of behavior does not align with the Navy’s core values and as such cannot be tolerated. Therefore, it is my recommendation that MM3 K_ (Applicant) be discharged from the U.S. Navy with a Honorable discharge.
Member separated on 20 December 2002.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021220 with a general (under honorable conditions) due to alcohol rehabilitation failure (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 1-2:  A characterization of service of general (under honorable conditions) is warranted when the member’s conduct constitutes a departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment on three occasions for violating the UCMJ, Articles 86 and 108.  The Applicant also failed to complete alcohol dependence rehabilitation as evidenced by his drinking alcohol while undergoing treatment and for lack of motivation.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits, not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  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, a positive employment record, an alcohol-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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  Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-152 (formerly Article 3630550), SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION.

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 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