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NAVY | DRB | 2005_Navy | ND0500746
Original file (ND0500746.rtf) Auto-classification: Denied


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

ex-CS3, USN
Docket No. ND05-00746

Applicant’s Request
The application for discharge review was received on 20050331. The Applicant requests characterization of service received at the time of discharge 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:

“Victim of a hazing incident and was unfairly judged because of false testimony submitted by the perpetrator of the conflict.”

“That is why I am requested the change because there was no legal matter surrounding the admin action and no proof of alcohol use either.”

“Do not want to pursue any legal complaints against persons offending.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001103 - 001225  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 001226               Date of Discharge: 040506

 Length of Service (years, months, days):

         Active: 03 04 10
         Inactive: None

 Age at Entry: 32                          Years Contracted: 4

Education Level: 12               AFQT: 75

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (5)             Behavior: 2.40 (5)                OTA: 2 .86

 Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal, Marksmanship Ribbon (M16)

 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 :

 010824:  Fleet Mental Health Unit San Diego: Recommend Administrative Separation on Expeditious basis, adaptability disorder, unsuitable for shipboard duties.

011019:  Fleet Mental Health Unit San Diego: Completion of life skills course, withdrawal of administrative separation recommendation, recommend Level II alcohol treatment at next command.

020219:  Medical Department Navy Mobile Construction Battalion Forty recommends level II alcohol treatment.

020303:  Alcohol incident (DAPA email).

020311:  Medical Screening (Substance Abuse Rehabilitation Department): Diagnosis: Alcohol Abuse.

020329:  Intensive outpatient treatment program level II completion.

0204XX:  Alcohol incident (Rehabilitation failure waiver request).

020503:  NJP for violation of UCMJ, Article 92: (2 Specifications), failure to obey lawful order.
         Award: Forfeiture of $650.00 pay per month for 2 months (1 month suspended), restriction and extra duty for 45 days, reduction in rate (suspended). No indication of appeal in the record.

020503:  Retention Warning: Advised of deficiency (Failure to obey Commanding Officer’s written policies as evidenced by CO’s NJP on 020503), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020612:  Request for waiver submitted by command with the following commanding officer's statement: "Mess Management Specialist Third Class J____ originally had an alcohol related incident in September 2001. As a result she attended and successfully completed an intensive Outpatient Treatment Program in March of 2002. Until a recent alcohol related incident in April 2002, she had been on track and getting her career and personal life together”.

020701:  COMNAVPERSCOM approved retention warning/waiver request.
040422:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service general (under honorable conditions) by reason of misconduct commission of a serious offense and alcohol abuse rehabilitation failure.
040422:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
040429:  Commanding Officer, U.S. Naval Mobile Construction Battalion Five authorized the Applicant's discharge with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure.

040506:  Applicant discharged.

040514:  Commanding Officer, U.S. Naval Mobile Construction Battalion Five informing Commander, Navy Personnel Command of Applicant’s discharge with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure. Commanding Officer’s comments: “Beginning in February 2004, CS3 J___ has had several incidences involving alcohol to include disorderly conduct, drunkenness, and assault consummated by a battery. CS3 J___ has been counseled by her chain of command with no improvement.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040506 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 all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1: Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. Despite a servicemember’s record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record clearly documents multiple alcohol related incidents following the completion of a level II intensive outpatient treatment program. This misconduct violated the rehabilitation aftercare treatment plan validating the alcohol rehabilitation treatment failure for which she was separated. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Separation processing is mandatory for sailors with documented alcohol treatment failure. Relief denied.

The Applicant alleges that she was the victim of a hazing incident and was unfairly judged because of false testimony against her. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the Applicant was judged unfairly or via false testimony. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

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, and certification of non-involvement with civil authorities. The Applicant did not submit documentation for the board to consider. Based on a lack of sufficient post service factors relief denied.

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 her 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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