ND 0600458

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


FOR OFFICIAL USE ONLY


                                   ex-MMFN, USN
                                Docket No. ND06-00458

Applicant’s Request

The application for discharge review was received on 20060210. The Applicant requests
the Discharge Characterization of Service received at the time of discharge be changed to
honorable and the Narrative Reason for Separation be changed to “Convenience of the
government.” The Applicant requests a documentary record discharge review. The
Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061214.
After a thorough review of the records, supporting documents, facts, and circumstances
unique to this case, impropriety and inequity in the characterization of the Applicant’s
service was discovered by the NDRB. The Board’s vote was unanimous that the
characterization of discharge and the reason for discharge shall change to: HONORABLE
/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code
“JFF.”
Docket No. ND06-00458


                    PART I - ISSUES AND DOCUMENTATION

Decisional Issues, as stated

Impropriety: Did not meet discharge criteria for alcohol rehab failure
Impropriety: Discharged for old misconduct
Equity: Characterization too harsh for conduct
Equity: Medical condition
Equity: Youth and Immaturity
Equity: Post Service

Documentation

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

    Applicant’s DD Form 214 (Service 2)
    Statement from Applicant (2 pgs)
    Excerpts from Service Record (16 pgs)
    Certificate of Completion for Teaching English as a Foreign Language Introductory
    Course from Tokyo Language Art College, dtd September, 1997
    Bachelor of Art Degree from the University of Hawaii, dtd May 15, 2005
    Certificate of Completion for Academic Program of the Alternate Route of
    Certification from the Board of Governors for Higher Education, dtd August 10, 2005
    Dean’s List ltr from J_ R. H, Dean, University of Hawaii at Manoa, dtd May 20, 2005
    Official Transcript from the University of Hawaii at Manoa, dtd July 27, 2005 (2 pgs)
    Academic Reference ltr from R_ L. R_, Professor of History, University of Hawaii, dtd
    July 1, 2005
    Letter of Recommendation from N_ K_, M.D., Department of Obstetrics and
    Gynecogoly Anan Kyoei Hospital, dtd June 19, 2005
    Letter of Recommendation from V_ C_, grade 8 team teacher, Martin Kellogg Middle
    School, dtd November 14, 2005
    Letter of Recommendation from K_ B_, dtd October 20, 2005
    Thank you card from students
    Thank you ltr from T_ C_ (student), dtd December 10, 2005
    Letter of Recommendation from T_ M_, Conrad High School, undated
    Letter of Recommendation from J_ A. S_, Ph.D., Principal, Martin Kellogg Middle
    School, dtd January 31, 2006
    Letter from K_ C_, Applicant’s wife, dtd January 2, 2006 (2 pgs)
    Closing Settlement Statement
    Letter of Confirmation for completion of the 2005 Connecticut Alternate Route to
    Certification I Program on August 10, 2005, dtd August 16, 2005
    Letter of Confirmation for completion of the 2005 Connecticut Alternate Route to
    Certification Summer Program (ARC) on August 10, 2005, dtd August 16, 2005
    Resume (2 pgs)


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Docket No. ND06-00458

   Remarks Attachments from Applicant (4 pgs)
   Letter from Applicant, dtd February 21, 2006
   Police Record Report, dtd February 21, 2006
   Photocopy of Applicant’s, wife and kids Social Security cards
   Marriage Certificate
   Photocopy of Applicant’s Faculty/Staff Identification
   W-2 Wage and Tax Statement




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Docket No. ND06-00458


                        PART II - SUMMARY OF SERVICE

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

       Inactive: USNR (DEP)          19900531 - 19900905               COG
       Active: None

Period of Service Under Review:

Date of Enlistment: 19900906                 Date of Discharge: 19931020

Length of Service (years, months, days):

       Active: 03 01 15
       Inactive: None

Time Lost During This Period (days):

       Unauthorized absence: None
       Confinement:          None

Age at Entry: 20

Years Contracted: 4

Education Level: 13                          AFQT: 71

Highest Rate: MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.8 (4)                 Behavior: 3.8 (4)            OTA: 3.75

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or
Authorized, (as listed on the DD Form 214): National Defense Service Medal




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Docket No. ND06-00458



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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:
MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900910:       You are being retained in the Naval service, despite your defective
              enlistment and induction due to fraudulent entry into Naval service as
              evidenced by your failure to disclose your pre-service civil
              involvement/drug abuse. 8/89 – 1/90 (5 Parking violations) Tempe, AZ.
              Arizona University Campus (paid $115.00 total). Discharge warning
              issued.

901003:       You are being retained in the Naval service, despite your defective
              enlistment and induction due to fraudulent entry into Naval service as
              evidenced by your failure to disclose your pre-service involvement with
              civil authorities consisting of the following: Failure to yield/no insurance,
              2/90, Tempe, AZ (paid $150.00 fine). However, any further deficiencies
              in performance or conduct may result in processing for administrative
              separation.

920325:       NJP for violation of UCMJ, Article 121: Did on or about 920211 at or
              near Naval Station, San Diego, CA steal, a DOD Decal, of a value
              unknown, property of the U.S. Government.
              Award: Forfeiture of $200.00 pay per month for 2 months, restriction to
              NAVSTA and extra duty for 45 days, reduction to E-2. No indication of
              appeal in the record.

920402:       Retention Warning: Advised of deficiency (VUCMJ, Article 121 (Larceny),
              on or about 920211, steal, a DOD Decal, of a value unknown, property of
              the U.S. Government as evidenced by CO’s NJP held 920325.), notified of
              corrective actions and assistance available, advised of consequences of
              further deficiencies, and issued discharge warning.

Undated:      Substance Abuse Screen, Naval Station Branch Clinic. Referred by DAPA.
              Symptoms: Intoxicates himself once a week (6-8 beers), drinks more than
              intended, unsuccessful efforts to control use, Interfers with responsibility or
              safety, uses knowing it causes other problems. Other history: Multiple
              family, peers, and parents with ETOH abuse. Assessment: Substance
              dependency. Plan: Level III Program (6 weeks inpatient)

920717:       Aftercare Plan: Patient will be in aftercare for not less than one year.
              Attend weekly meetings with command representative. If available ,


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Docket No. ND06-00458

            attend weekly meetings with other personnel in aftercare, attend
            Alcoholics Anonymous meetings at least 4 times weekly for twelve
            months.

930519:     Psychiatric Consult and Report. 23 year old requesting referral to Mental
            Health. Feels very anxious, apprehensive, unable to cope. History of level
            III alchohol detox. Persisting over 6 weeks, is aware of increasing
            pressure. “If can’t get well I’d rather die.” Provisional diagnosis: Anxiety,
            depression. Diagnosis: Axis I: Alcohol dependent, in remission.
            Axis II: Dependent personality
            Recommendation: 1. fit for return to full duty
            2. Supportive insight _ therapy was given
            3. encourage at least 4 AA meetings/week
            4. All lab work up for possible med in the future
            5. return next week for F/U. J_ U. C. H_, M.D. CAPTAIN/MC/USN

930614:     Mbr for F/U. Reported anxiety attack, fear of losing control, nervousness,
            afraid of people in public for no reason at all in the present few days. Low
            self esteem, lack of confidence. Diagnosis: Alcohol dependent in
            remission x 1 year/ Anxiety NOS
            Recommendation: 1) Supportive insight oriented psychotherapy was given
            2) Xanax 0.5 mg Disp #10 ½ tab po
            3) F/U in one week
            Saw service member in F/U, reported doing well w/ xanax. Took ½ tab
            TID x 4 days then only _ tab yesterday and ½ tab xanax _ tib prn. Disp #
            TEN. F/U 1 week. J_ U. C. H_, M.D. CAPTAIN/MC/USN

930628:     Saw this service member in follow up prior to his overseas duty. PT
            reported apprehension about going overseas and his sea duty. Concern
            about situation w/ Iraq. Request xanax refill in case of nervousness &
            nightmare. Patient reported he still has several tablets from last week, but
            worry about long fly and new command & new environment. Diagnosis:
            Alcohol dependence in remission. Dependent and obsessive compulsive
            personality. Recommend: Supportive insight oriented psychotherapy was
            given. 2) encourage cont. AA meetings & supportive counseling.
            3) Xanax .05 mg ½ tab PO TIB prn disp # 20. 4) psychiatrically fit for
            full duty & fully responsible for his behavior. J_ U. C. H_, M.D.
            CAPTAIN/MC/USN

930730:     23 Year old MM3 checked into command taking xanax for multiple
            personality disorders. Psych found patient fit for full duty while taking
            medication. Patient dependent on meds. Do not carry onboard. Request
            evaluation and fitness for duty. Provisional diagnosis: dependent
            personality disorder/ dependent on alcohol.




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Docket No. ND06-00458

930814:     Evaluated this 23 YO single male this date. It is felt that this man has
            Panic Disorder with agoraphobia. In that he has been treated with xanax
            and in that he remains symptomatic _ have elected to med evac him for
            further evaluation and disposition. My provisional diagnosis is.
            Axis I: 300.01 Panic Disorder and agoraphobia
            Axis II: V 71.09
            Axis III: R/O optic __
            Upon completion of evaluation in CONUS further disposition can be made
            until then we have established to continue the xanax. It is further
            recommended that this man not be returned to sea duty.

930823:     Psychiatric evaluation by Naval Medical Center, San Diego CA,
            Department of Psychiatry. Chief Complaint: “I’m feeling anxious all the
            time…I can’t take the pressure of shipboard life w/o Xanax. I’ve started to
            drink again and don’t feel I can control it”. Patient was treated for
            symptoms of anxiety and depression by CAPT H_ at FMHU 32nd Street on
            23 June while patient was stationed at SIMA. Dr. _ placed him on xanax
            which he reported significantly improved his mood and ability to function.
            Five weeks ago he transferred to USS Halsey, currently deployed to ESPAC.
            He experienced a return of the anxiety and dysphoria, and requested a
            medication refill in Bahrain since he felt unable to cope with shipboard
            stress without it. The psychologist at ASU Bahrain determined he was unfit
            for sea duty and MEDEVAC’d him to NMCSD.
            AXIS I: Alcohol Dependence Anxiety Disorder NOS
            AXIS II: Borderline traits
            AXIS III: no known illness
            Recommendation:
            1. The patient is medically fit for full duty. Due to his lapse in drinking he
            is a Level III Alcohol Treatment Aftercare Failure and is Strongly
            recommended for EXPEDITIOUS Administrative Separation IAW
            OPNAV 5350.4B.
            2. Although he is not a suicidal risk at present, he may become a threat to
            harm himself directly or indirectly should he be returned to sea duty.
            3. Due to the patient’s long history of self-medicating behavior. It is
            strongly recommended that he not be given psychoactive medication.
            Local Navy pharmacies have been notified to refuse issue of such
            medication to this patient.
            4. The patient is advised not to drink alcohol, and to resume the treatment
            program he has allowed to lapse.
            5. He is scheduled to meet with Mr. V_ of 32nd St. MHU at 0800 Fri 27
            Aug 93, who will schedule followup tx with Dr H_.
            6. The patient had been informed of these recommendations.
            7. Point of contact is Dr. C_ at _.




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Docket No. ND06-00458

930920:     Applicant notified of intended recommendation for discharge with the
            least favorable characterization of service as under other than honorable
            conditions by reason of misconduct due to commission of serious offense,
            to wit: steal a DOD decal, of unknown value, property of the U.S.
            Government; and alcohol abuse rehabilitation failure as evidenced by
            failure through inability or refusal to participate in, cooperate in, or
            successfully complete a prescribed course of treatment.

930922:     Applicant advised of rights and having consulted with counsel, elected to
            appear before an Administrative Discharge Board.

931006:     An Administrative Discharge Board, based upon a preponderance of the
            evidence and by unanimous vote, found that the Applicant had committed
            misconduct due to commission of a serious offense, to wit: steal a DOD
            decal, of unknown value, property of the U.S, Government; and alcohol
            abuse rehabilitation failure through inability or refusal to participate in,
            cooperate in, or successfully complete a prescribed course of treatment, that
            such misconduct warranted separation, and recommended discharge with a
            general (under honorable conditions).

931007:     Commanding Officer, Transient Personnel Unit, San Diego, recommended
            discharge with a general (under honorable conditions) by reason of
            misconduct due to commission of a serious offense and alcohol abuse
            rehabilitation failure. Commanding Officer’s comments: “I concur with
            the findings and recommendation of the administrative board.
            Recommend MM3 C_ (Applicant) be separated from the naval service
            with a General Discharge.”

931020:     Commanding Officer, Transient Personnel Unit, San Diego authorized
            discharge with a general (under honorable conditions) by reason of
            misconduct due to commission of a serious offense.

931020:     Applicant discharged.

931103:     MSG from Bupers Advising that Applicant did not qualify for discharge.
            “MBR did not violate the Page 13 counseling/warning entry of 920402
            which dates the CO’s decision to retain him. This entry is legally binding
            on the Navy. A return to drinking (without an incident) does not constitute
            alcohol abuse rehabilitation failure.”




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Docket No. ND06-00458


           PART III – RATIONALE FOR DECISION AND PERTINENT
                                 REGULATION/LAW

Discussion

The Applicant was discharged on 19931020 by reason of misconduct due to commission
of a serious offense (A and B) with a service characterization of general (under 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 not proper and
equitable (C and D).

In the course of reviewing the documents provided by the Applicant, the Applicant’s
service record (noting the retention warning for misconduct that formed the basis of his
discharge), and the message from the Bureau of Personnel, the Naval Discharge Review
Board found procedural deficiency in the conduct of Applicant’s discharge. The
Applicant was given notice of discharge for misconduct due to commission of a serious
offense and convenience of the government based on alcohol rehabilitation failure. He
was discharged for misconduct due to commission of a serious offense. Applicant’s
separation for the reason of commission of a serious offense was not proper because he
had received a retention warning for that misconduct. That decision to retain him was
binding on the Navy. He could only be separated for misconduct if he violated that
warning with subsequent misconduct. The Board found further that the evidence of
record does not support the Applicant’s administrative separation for either commission
of a serious offense or alcohol rehabilitation failure as highlighted by the BUPERS
message of 19931103. While the Applicant might have properly been discharged for
convenience of the government based on personality disorder, the command did not
properly notify him that he faced separation on that basis. Because he was not notified of
that basis, it is not available to this Board. In cases where no other reason for separation
set forth in the Naval Military Personnel Manual is appropriate, but where separation of a
member is considered to be in the best interest of the service, the Secretary of the Navy has
the authority to direct the separation. Therefore, the NDRB determined that the reason for
the Applicant’s discharge shall change to Secretarial Authority. Relief granted.

Since the Applicant’s separation by reason of misconduct was determined “improper”,
the characterization of service should be “type warranted by the service record.” At the
time of the Applicant’s discharge a service member’s service was usually characterized as
honorable unless his performance or conduct fell below 2.8 or his final trait average fell
below 3.0. A review of Applicant’s markings indicates that an honorable discharge was
warranted unless there was adverse information that would have warranted any other
characterization of service. Applicant’s performance, behavior, and final trait markings
were above the standard required for an honorable discharge. However, the Applicant’s
service record was marred by award of nonjudicial punishment for violation of Article
121 (larceny of a DOD decal), and would normally rate a characterization of service of at
least general (under honorable conditions). After consideration of the command’s
decision to retain him after that misconduct, the length of the Applicant’s service, his age,


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Docket No. ND06-00458

his medical conditions, his high conduct and performance marks, and Applicant’s post
service documentation; the Board determined, by unanimous vote that relief is warranted
based on equity grounds and that the characterization of service should be upgraded to
“honorable.” Relief granted.

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. 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 121 (larceny).

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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