Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0701081

Original file (ND0701081.rtf) Auto-classification: Denied

ex-YN3, USN
ND07-01081

Current Discharge and Applicant’s Request

Application Received: 20070803 Characterization Received:

Narrative Reason: ALCOHOL REHABILITATION FAILURE Authority: MILPERSMAN 1910-152

Applicant’s Request:     Characterization change to:
                           Narrative Re ason change :

Applicant’s Issues:      1. Reenlist
                           2. Post service – sober for three years, no alcohol related incidents since 2002, two reference letters,                           and a local police records check.

Decision

By a vote of the Characterization shall GENERAL (UNDER HONORABLE CONDITIONS).
B y a vote of the Narrative Reason shall ALCOHOL REHABILITATION FAILURE .

Date: 2008                 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 ( ): 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 provided a police records check, two reference letters and his statement of three years of sobriety and no alcohol related incidents since 2002 as doc umentation of his post-service accomplishments. 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, and docum entation of community service . The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service .

For the information of t he Applicant : OPNAVINST 5350.4C directs that c ommands shall process for administrative separation all members considered to be treatment failures . A treatment failure is defined as a ny serious alcohol incident occurring at any time during his or her career subsequent to treatment . The Ap plicant’s service was marred by incidents of endangering others by driving under the influence of alcohol, as well as unauthorized absence. Violations of UCMJ Article 111 (drunken driving) carry a maximum penalty of a dishonorable disc harge and up to 5 year s of imprisonment for each offense when adjudicated by a court martial. 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.

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) 19980311 - 19980504                 19970530 – 19970619      ELS (THC positive)
Period of Service Under Review:
Date of Enlistment: 19980504               Years Contracted : 4 + 19 month extension                   Date of Discharge: 20030221
Length of Service: 04 Yrs 09 Mths 18 D ys                                                      Lost Time:
Education Level:         Age at Enlistment: 19     AFQT: 33          Highest Rank/Rate: YN3
Evaluation marks (# of occasions):       Performance: 3.0 ( 4 )     Behavior: 2.2 ( 4 )                OTA: 2.89 (4)
Awards and Decorations (per DD 214): NDSM, AFSM (2), Kosovo Campaign Medal, NATO Medal (2), NATO Kosovo Medal, Good Conduct Medal, Joint Service Achievement Medal, NUC, Overseas Service Ribbon

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

200102XX:        DUI BAC .154

20020418:        DUI No further info.

200205XX:        DUI BAC .10

20021216:        Substance Abuse Rehabilitation Program, Great Lakes evaluation notes: Patient arrived for evaluation with alcohol on breath, BAC .16.
         Diagnosis: Alcohol dependence
         Recommendation: Intensive inpatient treatment.

20030110:        Applicant completed Level III alcohol rehabilitation at Great Lakes Naval Hospital.

20030221:        Applicant discharged.

20030513:        Commanding Officer, Navy Recruiting District Indianapolis reported the Applicant’s discharge by reason of alcohol rehabilitation failure with a service characterization of general (under honorable conditions) to Commander, Navy Personnel Command. Commanding Officer’s comments: “YN3 S_ (Applicant) had been arrested twice for DUI over the summer of 2002. At the time the incidents occurred, he was able to keep them from his chain of command. When these incidents came to light, he attended in-patient alcohol rehabilitation treatment at Naval Hospital, Great Lakes from 19 December 2002 through 10 January 2003.
         YN3 S_ failed to report for duty on 10 February 2003, stating that he was sick. On 11 February 2003 he admitted to his supervisor and the Executive Officer that on 10 February 2003 he was unable to report to work because he had been drinking heavily the night prior. He also admitted that he had gotten drunk the day after he was released from in-patient alcohol rehabilitation treatment.”

Discharge Process

Date Notified:                                       20030212
Reason for Discharge:

Least Favorable Characterization:

Date Applicant Responded to Notification:                 20030214
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review

S eparation Authority (date):     Commanding Officer, Navy Recruiting District Indianapolis ( 20030214 )
Reason for discharge directed:
Characterization directed:
Date Applicant Discharged:       20030221

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 111 .

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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NAVY | DRB | 2007_Navy | ND0701081

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