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NAVY | DRB | 2004_Navy | ND04-01247
Original file (ND04-01247.rtf) Auto-classification: Denied


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

ex-EMFA, USN
Docket No. ND04-01247

Applicant’s Request
The application for discharge review was received on 20040806. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the submission of DD Form 293, the Applicant obtained representation from American Legion

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority: MILPERSMAN, Article 1910-152 (formerly Article 3630550).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My reasoning for trying to get my discharge changed is simple. I feel my discharge should be upgraded is because I am now a reformed alcoholic I have had nothing to drink since my discharge, I truly feel that I have made a great step forth since my discharge. I have been steadily working full time since. I have to be truthful and say that with an upgrade on my discharge I would be able to better my life. My discharge being changed would help me to go to school and do something for myself and my future.
Thank you
[Applicant]”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

 2. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.
 _______________________________________________________________________
In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Review of the available records reflects that this former member maintained performance and conduct markings of 2.16 ITA and earned the NDSM, SSDR, and NMCOSR. He was awarded NJP on 030909 for VUCMJ, Articles 86, 92. On 030401, he was released from Level ll substance abuse rehabilitation due to drinking. Following due process notifications, he discharged on 031009 General (Under Honorable Conditions) due to alcohol rehabilitation failure as authorized by NAVMILPERSMAN, Article 1910-152.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he has become a recovering alcoholic and productive citizen. He has submitted 1 page of additional documentation reflecting his desire to attend college for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
VA Form 21-22 (3 copies) dtd 040730
Application for Admission, KCTCS, dtd 040607

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010410 - 010530  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010531               Date of Discharge: 031009

 Length of Service (years, months, days):

         Active: 02 04 09
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 35

 Highest Rate: EMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)             Behavior: 2.33 (3)                OTA: 2.43

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, NMCOSR

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/ ALCOHOL REHABILITATION FAILURE, authority: MILPERSMAN, Article 1910-152 (formerly Article 3630550).
Chronological Listing of Significant Service Events :

030401:  Applicant released from rehabilitation due to two episodes of drinking alcohol while in treatment. The Applicant is considered to be a treatment failure.

030909:  NJP for violation of UCMJ, Article 86: Unauthorized absence. Violation of Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $682 per month for 1 month, reduction to E-2, restriction with extra duty for 45 days. No indication of appeal in the record.

030916:  Applicant notified of intended recommendation for discharge by reason of alcohol abuse rehabilitation failure with the least favorable characterization of service as general (under honorable conditions).
030916:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030917:  Commanding Officer USS Essex (LHD 2) approved the Applicant's general (under honorable conditions) discharge by reason of alcohol abuse rehabilitation failure.

031006:  Commanding Officer TPU Puget Sound, directed the Applicant's general (under honorable conditions) discharge by reason of alcohol abuse rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged with a general (under honorable conditions) character of service on 20031009 due to alcohol rehabilitation failure (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issues 1-2. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, however, 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 should be provided to the Board include verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief denied.

The applicant is reminded that he remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at a personal appearance hearing is highly recommended. The possibility of favorable action in the applicant’s case will increase with the amount of time he maintains an alcohol free lifestyle. Verifiable documentation of such a lifestyle is essential.


Pertinent Regulation/Law (at time of discharge)

 A Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

PART IV - INFORMATION FOR THE APPLICANT
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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil” .

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

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