ex-AOAN, USN

Current Discharge and Applicant’s Request

Application Received: 20110503
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20010207 - 20010212  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010213	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040618	Highest Rank/Rate:  AO3
Length of Service:   Years     Months   07 Days
Education Level:  	AFQT:  35
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM KCM AFSM SSDR

Periods of UA/CONF:  

NJP:  2

- 20030820:	Article 86 (Absence without leave), 20030816
	Awarded: RIR FOP EPD   Suspended: RIR (suspend 6 months)

- 20040508:	Article 86 (Absence without leave, 20040422)
	Article 112 (Drunk on duty, 20040422)
	Article 134 (General Article, 20040422)
	Awarded: RIR (to E-3) FOP RESTR EPD   Suspended:  

SCM:  NONE	SPCM:  NONE	CC:  NONE 

Retention Warning Counseling:  3

- 20011011: 	For Commanding Officer’s NJP on 11 Oct 2001 for VUCMJ Art 134 (Underage drinking).

- 20030820:	For violation of UCMJ Article 86 (Absence without leave).

- 20040508:	NFIR (extracted from CO, Patrol Squadron 26 AdSep letter to PERSCOM).

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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.

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

Applicant’s Issues

1.	Applicant contends untreated depression led to self-medication with alcohol and the resultant misconduct.

Decision

Date:  20120725		Location:  Washington D.C.	Representation:  NONE

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

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 Board completed a thorough review of the available documentation to determine whether  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications), Article 112 (Drunk on duty), and Article 134 (General Article).  The record also revealed the Applicant was referred for alcohol rehabilitation treatment on 23 August 2002.  The Applicant attended outpatient treatment in Jacksonville, FL but was declared a treatment program failure on 21 January 2003.  On 23 April 2003, the Applicant’s command submitted a waiver request for retention of the Applicant in the Navy (in lieu of alcohol rehabilitation treatment failure) to the Commander, Navy Personnel Command (PERSCOM).  In his endorsement, the Applicant’s Commanding Officer’s stated, “This service member is a productive Sailor to the United States Navy.  He returned to the command and was inducted into an Aftercare program during which he was closely monitored by the command Drug and Alcohol Prevention Advisor.  During this period, the service member has addressed specific environmental problems.  (The Applicant) has had a remarkable turnaround since his Nonjudicial punishment.  Other than his alcohol-related issues he has done an outstanding job for the command.  He has been rated as an excellent performer.”  On 14 May 2003, PERSCOM approved retention of the Applicant and directed he be given a Page 13 retention counseling warning.

Subsequent to his retention in the Navy, the Applicant received two Page 13 retention warnings and two NJPs for violations of the UCMJ, which included Article 86 (Absence without leave), Article 112 (Drunk on duty), and Article 134 (General Article).  Based on the repeated offenses committed by the Applicant, his command processed him for administrative separation per the Naval Military Personnel Manual (MILPERSMAN).  When notified of administrative separation processing (for Pattern of Misconduct and Alcohol Rehabilitation Failure) using the notification procedure on 8 May 2004, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  The Applicant was not entitled to an administrative separation board.  The Applicant was separated from the Navy on 18 June 2004 with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.

:  (Decisional) ()  .  The Applicant contends untreated depression led to self-medication with alcohol and the resultant misconduct for which he was separated.  The NDRB conducted an exhaustive review of the records and found substantive evidence that the Applicant received comprehensive medical and counseling services support commencing in August 2002, when he received a mental health examination and follow-up care as a result of suicidal ideation.  Upon completion of the mental health evaluation, the staff psychiatrist diagnosed the Applicant with AXIS I: Alcohol induced mood disorder, depressed type, and Alcohol dependence, with physiological dependence.  He was found fit for duty and referred for substance abuse rehabilitation treatment.  Unfortunately, the Applicant failed rehabilitation treatment in January 2003.  The Applicant’s command requested he be retained in the Navy and given another chance to complete alcohol rehabilitation and continue his enlistment in the Navy.  The Applicant was retained in the service.  However, subsequent to his successful completion of rehabilitation treatment, he continued a pattern of misconduct that led to his eventual administrative separation from the Navy.

The NDRB recognizes that serving in the U.S. Navy is challenging.  However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment.  While the Applicant may feel depression was the underlying cause of his misconduct, the record clearly reflects his repeated misconduct was willful and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  Per the MILPERSMAN, 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 the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and falls short of what is required for an upgrade in the characterization of service.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries, and the administrative separation process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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