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Docket No. ND06-00357

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

FOR OFFICIAL USE ONLY

 ex-IT3, USN
Docket No. ND06-00357

Applicant’s Request

The application for discharge review was received on 20060103.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  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 20061108.  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 3 to 2 that the reason for discharge shall not change, and the Board’s vote was unanimous that the character of discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of alcohol rehabilitation failure.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“For the reason I was separated now has no grounds because I was found innocence

To: Secretary of the Navy Council of Review Board

Subject: Request for my reentry code to be change from RE-4 TO RE-2 and to bellowed to finish serving my country as reservist or fully active duty.

I respectfully requesting that under carefully consideration that I’m still fit to serve my country. enclose is a copy of some of my naval training.”

Documentation

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

Applicant’s DD Form 214 (Member 4)
Letter from Applicant to Department of Veteran’s Affairs regarding appeal of nonjudical punishment, undated (2 pages)
Bench Trial in the County Court of Law, San Patricio County, Texas, dtd March 10, 2005
Recommendation letter for selection to Seaman to Admiral Program from C_A. M_, dtd May 8, 2003.
Recommendation letter for selection to Seaman to Admiral Program from D_B. K_, dtd April 24, 2003.
Letter from the Applicant, dtd December 2, 1005.
Applicant’s Navy and Marine Corps Achievement Medal, dtd May 8, 2003
Applicant’s Enlisted Aviation Warfare Specialist Qualification certificate, dtd November 15, 2001
Applicant’s Service School Command, Great Lakes, Illinois certificate of graduation from Information Systems Technician Class “A” School, dtd April 3, 2002
Applicant’s Certificate of Completion of IT-21 PC Applications, dtd 15-15 April 2004
Applicant’s Certificate of Completion of Networking Foundations - Part I, dtd March 12, 2003
Applicant’s Certificate of Completion of MS Networking Essentials 2^nd Ed Pt 1, dtd May 29, 2002
Applicant’s Certificate of Completion of MS Networking Essentials 2^nd Ed Pt 2, dtd March 9, 2003
Applicant’s Certificate of Completion of MS Networking Essentials 2^nd Ed Pt 3, dtd March 25, 2003
Applicant’s Certificate of Completion of MS Exchange 5.5 Design Pt 1, dtd March 25, 2003 (2 copies)
Applicant’s Certificate of Completion of MS Exchange 5.5 Design Pt 2, dtd March 25, 2002
Applicant’s Certificate of Completion of MS Exchange 5.5 Design Pt 3, dtd March 25, 2003
Applicant’s Certificate of Completion of MS Exchange 5.5 Design Pt 4, March 28, 2003
Applicant’s Certificate of Completion of MS Win NT 4.0 Core Tech - Part 1, dtd March 28, 2003
Applicant’s Certificate of Completion of MS Win NT 4.0 Core Tech - Part 2, dtd March 28, 2003
Applicant’s Certificate of Completion of MS Win NT 4.0 Core Tech - Part 3, dtd March 28, 2003
Applicant’s Certificate of Completion of MS Win NT 4.0 Core Tech - Part 4, dtd March 29, 2003
Applicant’s Certificate of Completion of MS Win NT 4.0 TCP/IP Part 1, dtd March 29, 2003
Applicant’s Certificate of Completion of MS Win NT 4.0 Server Directory Svcs., dtd March 29, 2003
Applicant’s Certificate of Completion of Internetworking Technologies - Part 1, dtd March 30, 2003
Applicant’s Certificate of Completion of MS Win NT 4.0 Administering - Part 1, dtd March 28, 2003
Applicant’s Certificate of Completion of MS Win NT 4.0 Administering - Part 2, March 28, 2003
Applicant’s Certificate of Completion of i-Net+ Part 1 Internet Basics, dtd March 16, 2003
Applicant’s Certificate of Completion of i-Net+ Part 2 Servers and Clients, dtd March 15, 2003
Applicant’s Certificate of Completion of i-Net+ Part 4 Security and Business, dtd March 18, 2003
Applicant’s Certificate of Completion of i-Net+ Part 3 Web Site Development, dtd March 17, 2003
Applicant’s Certificate of Completion of Database Technologies Part 1, dtd March 15, 2003
Applicant’s Certificate of Completion of Database Technologies Part 2, dtd March 31, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19981029 – 19990623	COG
	Active:   USN	19990624 – 20030622	HON

Period of Service Under Review:

Date of Enlistment:  20030623		Date of Discharge:  20040726

Length of Service (years, months, days):

	Active:    01  01  04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  22

Years Contracted:  6

Education Level:  12				AFQT:  32/74

Highest Rate:  IT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*			Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy/Marine Corps Achievement Medal, First Good Conduct Award for the Period Ending 02Nov02, National Defense Service Medal, Armed Forces Expeditionary Medal, Navy/Marine Corps Overseas Service Medal, Coast Guard Unit Commendation

* Not Available

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: 

030623:	Reenlisted this date for a term of 6 years.

040123:	Applicant to unauthorized absence 0530-0755, 040123 for 2 hours and 25 minutes.

040124:	NJP for violation of UCMJ, Article 86 - Absence without leave.
	Award:  Restriction and extra duty for 15 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

040228:	Retention Warning:  Advised of deficiency (Public intoxication, excessive use of alcohol, tardiness to work due to use of alcohol.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040625:	NJP for violation of UCMJ, Article 111: Drunken or reckless operation of vehicle.
	Date of Offense:  040624
	Award:  Restriction for 45 days.  No indication of appeal in the record.

040726:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of alcohol rehabilitation failure, authority:  MILPERSMAN 1910-152.

Service Record did not contain the Administrative Discharge package.  
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040726 by reason of alcohol rehabilitation failure (A) 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 proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant was arrested for DUI by civilian authorities on 20040624.  Based on the civilian arrest, his Commanding Officer awarded nonjudicial punishment for the Applicant’s violation of Article 111 (drunken or reckless operation of a vehicle).  On 20050301, the Applicant was acquitted of the civilian charge of DUI.  The Applicant requests upgrade of his discharge to honorable because the disposition of his civilian charge negated the basis for his separation.  The Applicant is incorrect.  Separation for alcohol rehabilitation failure is proper where a service member has an alcohol related incident subsequent to treatment.  A civilian conviction was not required to find that he engaged in an alcohol related incident.  The factual basis of his separation for alcohol rehabilitation failure was the alcohol incident for which the Commanding Officer imposed nonjudicial punishment.  Article 1910-152 of NAVPERS 15560C defines an alcohol related incident as “an offense punishable under the Uniform Code of Military Justice (UCMJ) or civilian authority committed by a member where, in the judgment of the member's CO, the consumption of alcohol was the primary contributing factor.”  By imposing nonjudicial punishment, the Applicant’s Commanding Officer determined that the consumption of alcohol was the primary contributing factor in his arrest making it an alcohol incident subsequent to treatment.  Disposition of his civilian offense does not negate the alcohol incident or the Applicant’s nonjudicial punishment for that incident.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the nonjudicial punishment was improper.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case  Relief denied. 

The Applicant requests a change of his reenlistment code from RE-4 to RE-2.  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 additional evidence related to this discharge.  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 28 April 2005, Article 1910-152 (formerly Article 3630550), SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION

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

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.   Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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