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

Docket No. ND09-02408

ex-CTT3, USN

Current Discharge and Applicant’s Request

Application Received: 20090825
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) ALCOHOL REHABILITATION FAILURE
Authority for Discharge: (per DD 214) 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)	20010717 - 20020714  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20020715	Age at Enlistment:  18
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  20060830	Highest Rank/Rate:  CTT2
Length of Service:  04 Year(s)   01  Month(s)   16 Day(s)
Education Level:  12	AFQT:  84
Evaluation Marks:	Performance:  4.0 (2)	Behavior:  3.5 (2)	OTA:  3.93

Awards and Decorations (per DD 214):	NDSM NAVY "E" GCM SSDR (2) OSR (2) GWOTSM LoC

Periods of UA/CONF:  NONE

NJP:  3

- 20060411:	Article 92 (Failure to obey other lawful written order - Policy on alcohol consumption)
	Article 134 (Drunkenness - incapacitated for performance of duty)
	Awarded: RESTR EPD FOP RIR  Suspended:  RIR

- 20060621:	Article 92 (Failure to obey other lawful written order - failure to be on military installation at time prescribed)
	Awarded: RESTR EPD FOP  Suspended:  NONE

- 20060721:	Article 92 (Failure to obey other lawful written order - CO’s restriction orders)
	Awarded: RESTR EPD RIR  Suspended:  RIR

SCM:  NONE     SPCM:  NONE     CC:  NONE     Retention Warning Counseling:  NONE

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

Applicant’s Issues

1.	Applicant claims his nonjudicial punishment (NJP) on 21 June 2006 was unjust due to extenuating circumstances.
2.	The Applicant contends his discharge characterization is inequitable due to the high quality of his overall service.
3.    The Applicant contends his misconduct was an isolated incident.

Decision

Date:  20101007	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  Civilian Counsel

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 REHABILITATION FAILURE.

Discussion

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.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included:  three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, 3 specifications) and Article 134 (General: Drunkenness, incapacitation for duty, 1 specification).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  Based on the alcohol-related incident following IMPACT treatment, processing for administrative separation is mandatory.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel or submit a written statement.  The Applicant was not entitled to an administrative board.  

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.   The Applicant claims his NJP on 21 June 2006 was unjust due to extenuating circumstances.  The Applicant claims he was only late for curfew due to being a passenger in a car accident in which the driver, who was a fellow sailor, was injured.  The Applicant complied with military and Japanese law by staying at the scene of the accident and calling authorities.  This caused him to be late for curfew and he was subsequently taken to NJP for the offense.  This was an alcohol-related incident, which constituted mandatory processing for separation since the Applicant had completed Alcohol IMPACT treatment on 5 June 2006.  The Applicant was briefed upon completion of IMPACT treatment in accordance with OPNAVINST 5350.4C that “members who incur an alcohol incident anytime in their careers after going through Level 0.5/IMPACT shall be processed for administrative separation, unless a waiver is obtained from the Commander, Navy Personnel Command.”  The Applicant received a third NJP on 21 July 2006 for failing to obey the commanding officer’s restriction orders, which were part of the sentence from the June NJP.  The NDRB presumes regularity in the conduct of governmental affairs.  The Applicant presented no documentary evidence that his separation was improper in any way or that his command did not consider the circumstances of the misconduct.  The NDRB carefully considered the Applicant’s statements and material submitted.  However, the board found the Applicant’s separation to be both proper and equitable.  Relief denied.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge characterization is inequitable due to the high quality of his overall service.  The Applicant’s record of service was excellent prior to his misconduct.  However, the Applicant ultimately received three NJPs over approximately a three-month period.  According to regulations, the Applicant met the criteria to be separated for a pattern of misconduct in addition to the alcohol rehabilitation failure.  A General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  The NDRB found the Applicant’s overall service warranted the assigned discharge characterization.  An upgrade would be inappropriate.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his misconduct was an isolated incident.  The Applicant received three NJPs in approximately a three-month period.  In the NDRB’s view, the Applicant’s misconduct was not isolated.  As noted earlier, the Applicant met the criteria to be separated for a pattern of misconduct in addition to alcohol rehabilitation failure.  An upgrade would be inappropriate.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, 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.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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/To Representation:	☒	From/To Congress member:	☐
                    Other Documentation:	☒

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 29 April 2005 until 14 May 2008, Article 1910-152, SEPARATION BY REASON OF ALCOHOL 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. 

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 of the Applicant’s 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 veterans organizations such as the American Legion and the Disabled American Veterans that are 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 their 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 NDRB.  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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct 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 certificates (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 at 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  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 – Nonjudicial 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	BW – 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