Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND08-00870

ex-YN3, USN

Current Discharge and Applicant’s Request

Application Received:  20080318
Characterization of Service Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: ALCOHOL REHABILITATION FAILURE
Authority for Discharge:  MILPERSMAN 1910-152 (ALCOHOL REHABILITATION FAILURE)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19980826 - 19980915  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19980916	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  7 MONTHS Extension
Date of Discharge:  20020118	Highest Rank/Rate:  YN3
Length of Service:  03 Year(s)   04  Month(s)   03 Day(s)
Education Level:  12	AFQT:  75
Evaluation Marks:	Performance:  3.8 (5)	Behavior:  2.6 (5)	OTA:  3.06

Awards and Decorations (per DD 214):	NMCOSR (2) Pistol EX FLOC NDSM GWOTEM

Periods of CONF:  NONE

NJP:  1
- 20000524:	Article 86 (UA from place of duty)
	Article 92 (Failure to obey lawful general regulation)
	Article 107 (False official statement)
	Article 112 (Drunk on duty)
	Article 134 (Incapacitation for performance of duty 
	Awarded: RESTR RIR FOP  Suspended:  RIR FOP

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

- 20011101:  To receive in-patient treatment at an authorized DOD Military Treatment Facility.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  ☒	 Service/Medical Record:  ☒		  Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☒	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
              Additional Statements:
                    From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐
                    Other Documentation:  ☐

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

Applicant’s Issues

1. The Applicant’s commanding officer intended for him to be discharged with an Honorable characterization.
2. The Applicant’s bipolar condition went undetected saddling him with an unsupported diagnosis of alcoholism.
3. In-service and post-service conduct. 

Decision

Date:  20090610	PERSONAL APPEARANCE HEARING    Location:  Washington D.C.	Representation:  Civilian Counsel

By a vote of 4-1 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain ALCOHOL REHABILITATION FAILURE.

Discussion

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.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  The Applicant’s record of service was marred by one NAVPERS 1070/613 (Page 13) warning and one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA from place of duty), Article 92 (failure to obey lawful general regulation, specifics of charge unknown), Article 107 (false official statement), Article 112 (drunk on duty) and Article 134 (incapacitation for the performance of duty).  Additionally, per the Applicant’s Officer in Charge’s (OIC) recommendation for administrative separation of 2 November 2001 and preliminary investigation of 5 November 2001 indicates the Applicant: 1) was diagnosed with alcohol dependence, 2) was recommended for expeditious administrative processing based on his numerous alcohol-related incidents, 3) had one incident in April 2000 which resulted in NJP and treatment for alcohol abuse, 4) was deemed a Level II treatment failure based on his failure to meet the requirements of that aftercare treatment program, and 5) was recommended for separation with an Honorable discharge.  Per the letter of 01 March 2002 from  the Commanding Officer, Transient Personnel Unit (TPU) Puget Sound, the Applicant was discharged with a General (Under Honorable Conditions) characterization.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant appeared before the Board represented by counsel and presented three issues for the Board’s consideration.  The Applicant’s counsel first contended that the Applicant’s immediate commander intended for his characterization of discharge to be Honorable.  The separation authority (in this case, the Commanding Officer, TPU) is authorized to determine the characterization of service for members at the time of discharge unless designated to higher authorities such as the Navy Personnel Command or Secretary of the Navy.  The Board concurs with the Applicant’s contention that his immediate OIC intended for his characterization of service to be Honorable.  However, the OIC’s recommendation to separate the Applicant with a characterization of Honorable was not approved by the Commanding Officer, TPU, who directed the Applicant to be given a General (Under Honorable Conditions) characterization.  As the separation authority, the Commanding Officer was not required to comply with the OIC’s recommendation and therefore, the Board determined the Applicant’s contention to be without merit. 

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  Secondly, the Applicant’s counsel contended his Bipolar condition went undetected, saddling him with an unsupported diagnosis of alcoholism and separation due to Alcohol Rehabilitation Failure.  The Applicant’s medical note (35^th Medical Group Mental Health Clinic, Misawa AB, Japan) of 05 April 2000, indicates the Applicant was admitted to the mental health unit for a full medical work-up, antidepressant medication and observation, and diagnosed as alcohol dependent.  The Applicant’s counsel also submitted post-service medical documentation, including a letter of 29 April 2004, from the Applicant’s medical provider indicating the Applicant was diagnosed and treated for Bipolar Disorder, Type II, two years after his discharge.  There was no evidence in the record or provided by the Applicant, however, to support the contention that he was exhibiting symptoms relating to his bipolar disorder while on active duty.   The Applicant and his witness testified the Applicant had exhibited symptoms of bipolar disorder while on active duty but did not recall reporting these symptoms to a medical provider.  The Applicant had completed a Report of Medical History, Separation Physical on 20 November 2001 and answered “no” to the following: “Have you ever had or do you now have:  17a) – Nervous trouble of any sort (anxiety or panic attacks), f) depression or excessive worry, and g) been evaluated or treated for a mental condition.”  Based on the foregoing evidence, the Board concluded that the Applicant did not report symptoms of bipolar disorder to his medical providers when specifically asked, and denied experiencing any mental problems at the time of discharge.

The Board concluded: 1) the Applicant’s contention that his diagnosis of alcoholism was unsupported [by the evidence], is refuted by the documented evidence of the Applicant’s numerous alcohol-related incidences which occurred before and after he completed Level II Alcohol Rehabilitation Treatment, 2) there was insufficient evidence to demonstrate a connection between the Applicant’s mental disorder and his abuse of alcohol, 3) there is no documented evidence in the record or provided by the Applicant’s counsel to convince the Board that Navy medical providers failed to make a proper diagnosis of bipolar disorder, and 4) there was sufficient evidence to support the basis for separation due to alcohol rehabilitation failure.  

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  Lastly, the Applicant contends his discharge should be upgraded because he has been an excellent sailor and a truly accomplished and outstanding citizen.  The Board determined the Applicant’s in-service performance was insufficient to justify an upgrade in the characterization of service based on the offenses committed by the Applicant, and his failure to comply with the requirements of the alcohol rehabilitation aftercare program. 

In regard to the Applicant’s post-service conduct, 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance-free lifestyle are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.  The Applicant’s statements concerning post-service conduct were found not to mitigate the conduct which resulted in the characterization of discharge as General (Under Honorable Conditions).  The Board determined that, based on the frequency and seriousness of the offenses committed and the Applicant’s failure to take responsibility for his actions, an upgrade to Honorable is not warranted.

Summary:  After a thorough review of the available evidence, to include the applicant’s summary of service, service  record entries, discharge process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain General (Under Honorable Conditions) and the narrative reason for separation shall remain Alcohol Rehabilitation Failure.

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 until 
21 August 2002, Article 1910-152, 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 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:  After a document review has been conducted, 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.  There are veteran's organizations, such as the American Legion and the Association of Service Disable Veterans, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S Department of Veterans Affairs (VA) 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 NDRB 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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	B&W – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water