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NAVY | DRB | 2005_Navy | ND0500646
Original file (ND0500646.rtf) Auto-classification: Denied


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

ex-EMFR, USN
Docket No. ND05-00646

Applicant’s Request
The application for discharge review was received on 20050302. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727. 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:

"I am appealing my discharge from the U.S. NAVY, stationed onboard the USS SHILOH cg-67 out of NAVSTA San Diego, California. The order was a commission of a serious offense, but have been a motivated, well squared away sailor and the sailors onboard the USS SHILOH would concur to this.”

 Applicant’s Remarks:

" Dear sir/ma’am,

 I am getting around now to appealing my rate of discharge as a General.
 You have trained me well as an electrician, as a sailor, deployed me to the Persian Gulf stationed on the USS Shiloh (CG-67) and brought me back alive and well and I really don’t see the common fact as if why you discharged me out of uniform under a general discharge. I know I made a few mistakes in San Diego, California but when I was in uniform onboard my ship I have done the best damn job in my division in work detail. I know I have saved the Navy a lot of money on the work I have done making sure that my ship, or was my ship, operational and ALWAYS ready for the next set of orders.
 There is not a day I don’t think about how I could’ve managed myself better and I do have days when I think about the real reason as to “Why?” I was always motivated in my job, motivated for the GQ drills I’ve done, motivated when we launched finally on a mission we have waited so long for overseas, and then accomplished that mission. I don’t regret it at all, I will do it over and over again and I have always followed the orders assigned to me from my superior officers. The navy has made a squared away sailor and I hate to see that go to waste. I planned on making a career out of my enlistment into the Navy and have been through some rough seas but I have also seen some smooth seas. I’ve always loved putting on them crackerjacks with my rating badge on my arm and even know it only said that I was a Fireman Recruit, I felt a big rush of honor in me and proud of my victory in the Arabian Gulf. Right now as each day passes I feel that honor melting away because of my wrongdoing for recent DUI conviction on base that stripped my uniform off. I know it was wrong and a complete irresponsible way of thinking but it doesn’t mean that I am not dishonorable to my country or the United States Navy and would really like a second chance to get back in the swing of things and work my benefits off for the Navy once again. Captain H_, Commanding officer of the USS SHILOH CG-67, has ordered me out of the Navy and out of uniform and sent me home. I strongly urge you to re-open that case to find that it was a mistake, I never intended this horrible incident to happen, I didn’t want to leave, and I am still motivated enough to return to full active duty. I am very respectfully requesting permission to return to full active duty to join my ship, my fleet, in an on going mission’s to come and to be the best sailor that I can possibly be.
 Thank you all very much.

Sincerely,
[signed]
D_ J. K_ (Applicant)

--By the signature above I declare all information on this statement is true to the very best of my knowledge."
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Dues Receipt for Applicant's AMVETS membership
Completion Certificate for U.S. Navy Electricians Mate "A" School

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     011012 - 020128  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 020129               Date of Discharge: 030918

 Length of Service (years, months, days):

         Active: 01 07 20
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 35
Highest Rate: EMFR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)             Behavior: 1.00 (2)                OTA: 2.42

Military Decorations: None

 Unit/Campaign/Service Awards: NUC, NDSM, AFEM

 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 :

011012:  Enlistment waiver interview conducted via telephone between recruiting station executive officer and the Applicant. Enlistment waiver granted for one Chart C offense (possession of marijuana), and three Chart B offenses
 (2 tobacco and 1 alcohol).
020626:  NJP for violation of UCMJ, Article 92 (2 specifications):
 Specification 1: Wrongfully having alcohol in the BEQ;
Specification 2: Underage drinking.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days. Restriction and extra duty for 7 days suspended for 6 months. No indication of appeal in the record.
020626:  Retention Warning: Advised of deficiency (Poor military performance, to wit: alcohol in the BEQ and underage drinking). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 020717:  NJP for violation of UCMJ, Article 92: Drinking underage.
         Award: Forfeiture of $250 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
020717:  Retention Warning: Advised of deficiency (Poor military performance, to wit: underage drinking). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020722:  Suspended portion of nonjudicial punishment (NJP) awarded on 20020626 vacated.

021018:  Applicant completes Level II Intensive Outpatient Alcohol Rehabilitation Treatment Program, Support Schools Command, Great Lakes, IL.

030618:  NJP for violation of UCMJ, Article 86: Unauthorized absence; Article 111: Drunken operation of vehicle; and Article 134: Underage drinking.
         Award: Forfeiture of $650.40 per month for 2 months, restriction and extra duty for 30 days, reduction to E-1. No indication of appeal in the record.
030720:  Applicant to Correctional Custody Unit (CCU) at Puget Sound, WA.

030818:  Applicant successfully completes CCU. [Extracted from Evaluation
 Report & Counseling Record for period from 20030719 to 20030918.]
030822:  Retention Warning: Advised of deficiency (a. Violation of UCMJ Article 86 (Unauthorized absence. b. Violation of UCMJ Article 92 Failure to obey lawful general order, to wit: hazing). Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 030831:  Applicant arrested in San Diego under suspicion of driving under the influence of alcohol on 20030831. [Extracted from CO’s letter, undated.]
030912:  Applicant notified of intended recommendation for discharge by reason of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, and alcohol abuse rehabilitation failure. Applicant further advised that the least favorable characterization of service possible is general (under honorable conditions).
030918:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right submit a written statement for consideration by the Separation Authority. [Statement listed as enclosure on the Commanding Officer’s undated letter, but not found in service record.]
UNDATED:         Commanding Officer, USS SHILOH informed the Commander, Navy Personnel Command (PERS-832) of the Applicant's discharge with a characterization of general (under honorable conditions) by reason of alcohol abuse rehabilitation failure. Commanding Officer’s comments: "EMFR K_ has shown an inability to deal with his alcohol abuse despite consistent efforts to assist him from this and previous commands that has rendered him unfit for continued military service. The member completed Level II Intensive Outpatient Alcohol Rehabilitation treatment on 18 Oct 02 (enclosure (17)) and was specifically counseled against future alcohol related violations in two separate Page 13 entries of 17 Jul 02 and 26 Jun 02 (enclosures 9, 10)). FA K_'s (Applicant’s) recent NAVPERS 1070/613 warning advised him that any future deficiencies in conduct; violations of the UCMJ, or conduct resulting in civilian conviction could result in his administrative separation (enclosure (7)). Following his CO’s NJP of 18 Jun 03, the command demonstrated significant leadership in attempting to assist FA K_ (Applicant) in his alcohol rehabilitation, specifically command DAPA representative support of continued rehabilitation support counseling. The MBR did not avail himself of these efforts. The MBR’s recent arrest under suspicion of driving under the influence of alcohol on 31 Aug 03 (enclosures (15, 16)) is only the latest in his history of alcohol related violations (enclosures (4, 5, 6)."

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030918 with a general (under honorable conditions) 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).

The Applicant contends that his discharge was inequitable as his service record shows he was a motivated and competent Sailor who accomplished everything he was asked or ordered to do, implying that such performance mitigates his misconduct. The Board advises the Applicant that, despite the positive aspects of a Sailor’s record of service, commands are to process that Sailor for administrative separation if he or she is considered to be an alcohol rehabilitation treatment failure, unless a written wavier is obtained. The Navy Military Personnel Manual (NAVPERSMAN) defines a treatment failure as any serious alcohol related incident (preceded by a previous incident) occurring subsequent to rehabilitative treatment. The NAVPERSMAN further defines an alcohol related incident as an offense, punishable either under the UCMJ or by civilian authority, which is committed by a member where, in the judgment of the member's CO, the consumption of alcohol was the primary contributing factor.

The Applicant's service record shows the following:
o        on 20020626 and 20020717 he was awarded nonjudicial punishment (NJP) for violating UCMJ Article 92 (3 total specifications) for underage drinking and having alcohol in his BEQ;
o        on 20 021018 he successfully completed Level II Intensive Outpatient Alcohol Rehabilitation Treatment Program at Support Schools Command;
o        on 20030618 he was awarded NJP for violating UCMJ Articles 86, 111, and 134 for being UA, drunken operation of a motor vehicle, and underage drinking;
o        on 20030831 he was arrested by civilian authorities for suspicion of driving under the influence of alcohol.
Further, the record does not indicate that a waiver for the Applicant's processing for administrative separation was submitted to the Navy Personnel Command (PERS-832). As such, the Board found that the Applicant was involved in an alcohol related incident subsequent to rehabilitation, did meet the criteria for an alcohol rehabilitation treatment failure, and was properly and equitably processed for administrative separation. The Board recognizes the positive aspects of the Applicant's service but finds that no other characterization or narrative reason more clearly describes his service or the reason for his separation from Navy. Relief on this basis is denied.


The following is provided for the edification of the Applicant. 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 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 proof of educational pursuits, 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 any documentation of a post-service nature for the Board to consider.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, the NDRB is not authorized to change a reenlistment code. 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. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, for a change to his reenlistment code.

The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to his discharge at that time. Representation at a personal appearance hearing is recommended but not required.


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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