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NAVY | DRB | 2007_Navy | ND0701038
Original file (ND0701038.rtf) Auto-classification: Denied
ex-FA, USN
ND07-01038

Current Discharge and Applicant’s Request
Application Received: 20070725   Characterization Received:
Narrative Reason: ALCOHOL REHABILITATION FAILURE         Authority: MILPERSMAN 1910-152

Applicant’s Request:     Characterization change to:
                           Narrative Rea son change : Reenlistment status

Applicant’s Issues:      1. Reenlist
                           2 . Left treatment center on night prior to graduation and passed breathalyzer test upon return.
                           3 . Punishment harsh based upon quality of service.
                           4. Was used as an example for others.
                           5. Young and immature.
                           6. Post – completed rehab, no longer drink


Decision

 By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ALCOHOL REHABILITATION FAILURE .
Date: 20 080110             Location: Washington D.C         R epresentation :


Discussion

 : which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 (Equity): The Applicant contends that he should not have been discharged because he l eft the treatment center on night prior to graduation and passed breathalyzer test upon return. NAVPERS 15560C , Article 1910-152 directs that c ommands shall process for administrative separation all members considered to be treatment failures . A treatment failure may be defined as the w illful failure to complete the medically prescribed treatment or a subsequent alcohol incident. Based upon the record the Applicant knowingly violated the terms of his treatment by “sneaking out” one more than one occasion. Furthermore subsequent to the Applicant’s discharge from SARP he went to NJP for underage drinking and disorderly conduct. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.

Issue s 3 and 4 ( ) : The Applicant contends that his discharge is inequitable based upon the quality of his service and his perception that he was punished harshly as an example for his shipmates. The characterization of service is a description or classification of the total service provided during the members enlistment. 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. A General (under honorable conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by the unadjudicated offenses of drunk and disorderly in Bahrain and a civil DUI. The record also documents his nonjudicial punishment proceeding for violations of UCMJ Articles 92 (failure to obey, underage drinking) and 134 (disorderly conduct) each violation of Article 134 is considered the c ommission of a serious offense . This serious offense violation carries a maximum penalty of a b ad c onduct d ischarge and up to two year s of imprisonment. The separation was appropriate and a general (under h onorable conditions ) characterization of service was warranted .

Issue 5 (Equity): The Applicant contends that his discharge was inequitable because his punishment was too harsh based on youthful indiscretions. The Board reviews the propriety and equity of each Applicant’s discharge individually. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the n aval service. While t he Applicant may feel that his immaturity was the underlying cause of his discharge , the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The evidence supported the discharge based upon alcohol rehabilitation failure. The separation was appropriate, and a general under honorable conditions characterization of service was warranted.

Issue 6 ( ): The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, 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 the civilian life subsequent to leaving the servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding post-service conduct to the extent that 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. The Applicant submitted three letters of reference and certification of his alcohol abuse treatment completion in support of his argument for an upgrade based on post-service conduct . The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the Applicant’s current post service achievements d o not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service .

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that


Summary of Service

Prior Service:
 Inactive: USNR (DEP) 200110324 - 20010827      
Period of Service Under Review:
 Date of Enlistment: 20010828               Years Contracted : 4                Date of Discharge: 20030318      
Length of Service: 01 Yrs 06 Mths 09 D ys                                             Lost Time:
Education Level: 12       Age at Enlistment: 18     AFQT: 39          Highest Rank/Rate: FA
Evaluation marks (# of occasions):       Performance: 2.0 ( 2 )     Behavior: 1.5 ( 2 )                OTA: 2.13 (2)      
Awards and Decorations (per DD 214): NDSM      


Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20011216:        Applicant reported for duty aboard USS JOHN F. KENNEDY (CV 67).

20020402:        Applicant drunk and disorderly, Bahrain.

20020502:        Applicant diagnosed as alcohol abuser.

20021019:        Applicant charged with DUI, BAC 0.18.

20021126:        Applicant admitted to Naval Hospital Addictions Rehabilitation Clinic Jacksonville Florida.

20021205:        Applicant discharged from Naval Hospital Addictions Rehabilitation Clinic Jacksonville Florida. Report states: Overall progress in the treatment of alcohol abuse was poor. His assignments were not turned in on time and he regularly had to be reminded not to fall asleep in lectures and group. On 05 Dec 2002 he was absent from the 0715 muster returning at 0845. Applicant admitted to sneaking out at least twice at night after muster. Applicant also stated that he does not believe that he has an alcohol problem. Discharged due to treatment failure.

20030207:        NJP – Violation of UCMJ Articles 92 (failure to obey) and 134 (disorderly conduct) on 20030117.
         Awarded - FOP ($ 675/month for 2 months); RIR ( E-2 ); Restr and Extra duties (45 days , 15 days suspended ).

20030311:        Evaluation for period 20020715 through 20030311, block 43 comments: “FN K_ was referred to the Navy Alcohol Rehabilitation Center for alcohol abuse. He failed to complete the program due to multiple violations of program regulations, including consuming alcohol while enrolled in the program.”

20030326:        Commanding Officer, USS JOHN F. KENNEDY (CV 67) reported the Applicant’s discharge to Commander, Navy Personnel Command. Comments: “At a recent nonjudicial punishment proceeding, Fireman Apprentice K_ (Applicant) was found guilty of violating a lawful order by drinking under the legal age and of drunk and disorderly conduct. FA K_ has been seen by the ship’s DAPA for several alcohol related incidents and he has been afforded every opportunity, including treatment in December 2002 at SARP Jacksonville, to overcome his personal issue with alcohol – unfortunately, he has not been able to keep his alcohol abuse in check. ”


Discharge Process

 Date Notified:                                       20030221      
Reason for Discharge:   
         -

Least Favorable Characterization:       

Date Applicant Responded to Notification:                 20030221
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         GCMCA review                               

Separation Authority (date):     Commanding Officer, USS JOHN F. KENNEDY (CV 67) ( 20030312 )
Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       20030318


Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:     Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      


Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 .



ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may 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.

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 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.

Board Membership: 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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