Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND07-01037

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

ex-MS2, USN
ND07-01037

Current Discharge and Applicant’s Request

Application Received:  20070724 	Characterization Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason:  ALCOHOL ABUSE REHABILITATION FAILURE 	Authority:  MILPERSMAN 1910-152

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Change RE-Code/re-enlist
			2. Post-service conduct

Decision

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain ALCOHOL ABUSE REHABILITATION FAILURE.

Date:  20080117  DOCUMENTARY REVIEW  Location:  Washington D.C  Representation:  Disabled American Veterans

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one that the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.

Issue 2 (Equity).  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.  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.  The Board found that the Applicant had submitted credible evidence indicative of some success in addressing his alcohol problem, and commends the Applicant’s apparent rehabilitative success to date.  However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the circumstances leading to his discharge, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time.

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 the discharge was proper and equitable.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19941107 - 19950118  COG		Active:   NONE	
Period of Service Under Review:
Date of Enlistment: 19950119		Years Contracted:  4; Extension:  33 MONTHS	Date of Discharge:  20010730
Length of Service:  06  Yrs  06  Mths  12  Dys		Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  11		Age at Enlistment:  28		AFQT:  85	Highest Rank/Rate:  MS2
Evaluation marks (# of occasions):	Performance:  40(1)	Behavior:  4.0(1)	 	OTA:  3.90	(4.0 scale) 
				Performance:  5.0(3)	Behavior:  3.7(3)	 	OTA:  4.34	(5.0 scale)
Awards and Decorations (per DD 214):  NDSM, SSDR(3), NMCAM(2), AFSM, AFEM, BATTLE "E", NATO, GCM(2), ENLSURWARSPEC

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

19941107:	Enlisted waiver for pre-service DUI approved.

20001104:	Applicant discovered crying in supply storeroom with galley knife @0030, while attired in boxer shorts and bleeding slightly from injury to his right thigh and smell of alcohol on his breath.  Applicant made homosexual admission in reference to his unrequited attraction toward another male Sailor, and expressed intention to engage in homosexual acts.  Applicant departed ship without authority; upon return @0300 escorted to medical for evaluation and observation.
	[NDRB note:  Subsequent inquiry revealed that Applicant had previously made unwanted sexual advances toward junior Sailors after ingesting alcohol.] 

20010410:	Medical Record:  Reason for visit:  Rehabilitation treatment
	Diagnosis:  Released from treatment to duty status due to non-compliance with program rules and regulations.
	Recommendation:  Continuing Care program.

Discharge Process

Date Notified:					20010404
Reason for Discharge:	HOMOSEXUAL CONDUCT - HOMOSEXUAL ADMISSION
	ALCOHOL ABUSE REHABILITATION FAILURE 
Least Favorable Characterization:	GENERAL (UNDER HONORABLE CONDITIONS)

Date Applicant Responded to Notification:		20010405
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED 
	Administrative Board			WAIVED

Commanding Officer Recommendation (date):	HONORABLE (20010523)
Separation Authority (date):	COMNAVPERSCOM (20010711)
              Reason for discharge directed:	ALCOHOL ABUSE REHABILITATION FAILURE 
              Characterization directed:	GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:	20010730

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) ☒ Background check

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 Mar 2000 until 21 Aug 2002, 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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