DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

TIR
Docket No: 7965-07

25 June 2008

From: Chairman, Board for Correction of Naval Records
To: secretary of the Navy

 

 

 

Subj: REVIEW NAVAL RECORD OF

Ref: (a) 10 U.S.C. 1552
(b) OPNAVINST 5350.4c
(c) BUPERSINST 1900.8B

 

 

Encl (1) DD Form 149 with attachments
(2) Case summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a

former enlisted member of the Navy, filed enclosure (1) with this
Board requesting that his reenlistment code be changed.

Board, consisting of Messrs. @ua@iiiber MMF and

an e, reviewed Petitioner's allegations of error and
injustice on 24 June 2008 and, pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations, and policies.

  

3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as

follows:

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.

b. Enclosure (1) was filed ina timely manner.

 

Cc. Petitioner enlisted in the Navy on 19 November 1996 at
age 18 and began a period of active duty on 29 December 1996.

ad. During Petitioner’s 17 years of honorable service, he

was awarded a Navy Unit Commendation, Navy Air Medal, Armed
Forces Service Medal, Navy “E” Ribbon, Joint Meritorious Unit
Award, Overseas Service Ribbon, Southeast Asia Service Medal,
Joint Meritorious Unit Award with Oak Cluster, two Navy and
Marine Corps Achievement Medals, two Letters of Commendation,
three Meritorious Unit Commendations, five Good Conduct Medals,
two National Defense Service Medals, six Sea Service Deployment
Ribbons, and two North Atlantic Treaty Organization (NATO)

Medals.

e. Petitioner served his initial enlistment without
disciplinary incident. However, in November 1988, he was
involved in an alcohol related incident, specifically, driving
under the influence of alcohol. As a result, he was assigned to
an alcohol rehabilitation program. On 31 January 1989, upon
completion of the Level II rehabilitation program, he was
assigned to an aftercare treatment program in accordance with

reference (b).

£. Petitioner reenlisted in the Navy on 7 May 1993. He
also extended his enlistment on four more occasions.

g. On 23 April 2002 Petitioner received: nonjudicial
punishment (NUP) for driving under the influence of alcohol, an
incident which occurred in March 2002. As a result, he was
assigned to a Level I alcohol rehabilitation program on an out-
patient treatment basis. On 31 May 2002 he completed this
program and was assigned to an aftercare program.

h. On 26 June 2002 Petitioner’s commanding officer
submitted a request for a retention waiver based on Petitioner’s
superior performance. Subsequently, Petitioner’s immediate
supervisor, in concurrence with the commanding officer, requested
retention of him even though he had incurred two alcohol related
incidents during his period of service, and as such should have
been administratively processed for separation in accordance with

reference (b).

1. On 2 July 2002 the Chief of Naval Personnel (CNP)
granted the waiver for retention and Petitioner was retained in
the Navy. At this point, CNP stated that no further action with
regard to an administrative separation was warranted. CNP
further stated, in part, that in the event of Petitioner’s
subsequent failure to complete additional treatment, or if he is
determined not to be amenable to treatment, or if another alcohol
related incident occurs, the command should proceed with an

administrative separation.
j.- It appears that in November 2003 Petitioner’s command
initiated administrative separation processing in accordance with
reference (b). In this regard, Petitioner was separated from the
Navy by reason of alcohol rehabilitation failure due to his two
alcohol related incidents. The first incident occurred in
November 1988 and the second incident occurred in March 2002,
approximately 14 years after completion of his Level II

rehabilitation program.

k. It further appears that the waiver of retention granted
by CNP on 2 July 2002 was not considered during Petitioner's
administrative separation processing. In this regard, reference
(b) states, in part, that commands shall process for
administrative separation all members considered to be treatment
failures ‘unless a written waiver is obtained’ from CNP.

1. Petitioner’s separation enlistment performance
evaluation for the period from 16 November 2003 to 20 May 2004
indicates that he was not only promotable, but recommended for

retention.

m. On 30 April 2004 the discharge authority, Commanding
Officer, Patrol Squadron Thirty (VP-30), directed separation by
reason of alcohol rehabilitation failure and assigned of an RE-4

reenlistment code.

n. On 20 May 2004 Petitioner was honorably discharged by
reason of alcohol rehabilitation failure. At that time he was
recommended for reenlistment, but was assigned an RE-4
reenlistment code as required by reference (c).

o. There is no evidence in the record, and none could be
obtained from the military or civilian communities, to support an
administrative separation by reason of alcohol rehabilitation
failure, specifically, a third alcohol related incident following

the waiver of retention.

p. In Petitioner’s application and his supporting
documentation, he states, in part, that he was not the subject of
any alcohol related incidents, military or civilian, after
receiving a waiver for retention. Petitioner has also provided
documentation of good post service conduct to include medical
records that attest to his sobriety, and character reference

letters.
q. Reference (c) authorized the issuance of an RE-1
reenlistment code for Sailors who are processed for separation by
reason of the best interest of the service (Secretarial
Authority). It also authorized an RE-1 reenlistment code for a
Sailor, such as Petitioner, who was honorably discharged and

recommended for retention.

CONCLUSION:

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable

action.

The Board notes Petitioner’s alcohol related incidents, one of
which resulted in NUP, and does not condone his misconduct.
However, the Board’s decision is based on Petitioner’s otherwise
outstanding record in which he was awarded numerous medals.

The Board believes that Petitioner’s discharge was based solely
on the two alcohol related incidents that occurred prior to him
being granted a waiver for retention by CNP. The Board further
believes that Petitioner was erroneously separated by reason of
alcohol rehabilitation failure since by reference (b), another (a
third) alcohol incident after being granted the waiver would have
been cause for an administrative separation. In this regard,
neither Petitioner’s record, the Bureau, nor Petitioner’s last
command (VP-30) has evidence of such an incident. Furthermore,
evidence of a third alcohol related incident could not be

obtained from the civilian community.

The Board also notes that although Petitioner was processed for
separation due to alcohol rehabilitation failure, and assigned an
RE-4 reenlistment code, he was recommended for retention by both
his immediate supervisor and commanding officer. In this regard,
the Board believes that the command’s ‘hands were tied’ by the
guidelines of reference (b) and was obligated to assign an RE-4

reenlistment code.

 

In view of the above, the Board concludes that Petitioner's
narrative reason for separation should be appropriately changed
to Secretarial Authority, which is in the best interest of the
service. The Board further concludes that an RE-1 reenlistment
code is now the most appropriate code for Petitioner's situation,
and that the record should be corrected accordingly.

RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show that

he was honorably discharged by reason of Secretarial Authority on
20 May 2004 vice by reason of alcohol rehabilitation failure.
b. That Petitioner's naval record be further corrected to
show that he was assigned an RE-1 reenlistment code on 20 May
2004 vice the RE-4 reenlistment code actually assigned on that

date.

c. That Petitioner’s naval record reflect that when he
becomes retirement eligible, that the separation payment he
received upon his discharge of 20 May 2004 in the amount of
$29,024.80 will become recoupable by the Defense Finance and
Accounting Service (DFAS). Petitioner’s naval record should
further reflect that he was advised of this DFAS recoupment
requirement on 24 June 2008.

d. That any material or entries inconsistent with or
relating to the Board's recommendation be corrected, removed, or
completely expunged from Petitioner's record and that no such
entries or material be added to the record in the future.

e. That any material directed to be removed from
Petitioner's naval record be returned to the Board, together with
a copy of this Report of Proceedings, for retention ina
confidential file maintained for such purposes, with no cross
references being made a part of Petitioner's naval record.

4. It is certified that a quorum was present at the Board's

review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled

 

 

 

matter.

ROBERT D. ZSALMAN BRIAN J. EORGE

Recorder Acting Recorder

5. Pursuant to the delegation of authority set out in Section

6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulation, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.

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W. DEAN PF
Executive D or