ex-MM3, USN
ND07-00422

Current Discharge and Applicant’s Request

Application Received:  20070215	Characterization Received:  
Narrative Reason:  ALCOHOL REHABILITATION FAILURE; Authority:  MILPERSMAN 3630550

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Discharge for alcohol rehabilitation, a program he volunteered to attend.
			2. Treated unfairly by the Command
			3. Racial biased Command

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  ALCOHOL REHABILITATION FAILURE.

Date:  20071025  					Location:  Washington D.C. 

Discussion

Issue 1: (). The Applicant contends that he was discharged for alcohol rehabilitation failure, a program that he entered voluntarily.  The record clearly reveals that the applicant was admitted to Monmouth Medical Center for depression and suicidal ideations.  He was diagnosed by competent medical authority with major depression and moderate alcohol dependence. He was discharged to the Tri-Service Alcoholism Recovery Department at National Naval Medical Center Bethesda, Maryland for treatment and was subsequently diagnosed as a treatment failure by competent medical authority.  The Board found that the Applicant’s discharge from the Navy was proper.  The Board reviews the equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  There is credible evidence in the record that the Applicant committed misconduct on numerous occasions.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct, the Applicant should not be held accountable for his actions, or that medical issues were the cause of the misconduct.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A general (under 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.  The Applicant’s service was marred by two NJPs for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (dereliction of duty).  A violation of Article 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.

Issue 2: ().  The Applicant implies that he was treated unfairly by his unit.  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 command unfairly singled him out for ridicule or discipline.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 3: ().  In the Applicant’s letter to the Board he states that was forced to endure racism by his command.  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 claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of racism.  However, even if the Applicant could document his claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900809 - 19900822  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19900823	Years Contracted:  ; Extension:    	Date of Discharge:  19941006
Length of Service:  04  Yrs  01  Mths  14  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  61	Highest Rank/Rate:  MM2
Evaluation marks (# of occasions):	Performance:  3.8(1)	Behavior:  3.8(1)		 OTA:  3.80 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3), SOUTHWEST ASIA SERVICE MEDAL W/THREE BRONZE STARS, JOINT MERITORIOUS UNIT COMMENDATION, ARMED FORCES EXPEDITIONARY MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19940429:	NJP -- Viol UCMJ Art. 92 – Dereliction of duty.
	Awarded - FOP ($450.00) for (1 month); RIR (E-4); Restr for (30 days).

19940503:	Applicant discharged from Monmouth Medical Center.  Applicant admitted 19940430 for depression and suicidal ideation.  Diagnosis: Major depression and moderate alcohol dependence.  Discharge Plan: discharged to be transferred to hospital in Maryland for continued care.

19940607:	Applicant diagnosed as a treatment failure for the rehabilitation program.

19940610:	Applicant discharged from Tri-Service Alcoholism Recovery Department National Naval Medical Center, Bethesda, Maryland. 

19940913:	NJP -- Viol UCMJ Art. 92 – Dereliction of duty.
	Awarded - RIR (E-3) suspended for 6 months. [Extracted from CO’s message].

Discharge Process

Date Notified:					19941003
Reason for Discharge:	ALCOHOL REHABILITATION FAILURE
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19941003
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	COMMANDING OFFICER, USS BUTTE (AE 27) (19941008)
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19941006

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 2 Oct 96), Article 3630550, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE

B.  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 V, Para 502, Propriety and Para 503, Equity.

C.  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 92.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval 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.

Employment/Educational Opportunities:  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 of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 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 may 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.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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