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NAVY | DRB | 2008_Navy | ND0800741
Original file (ND0800741.rtf) Auto-classification: Denied

ex-FC3, USN
Current Discharge and Applicant’s Request
Application Received: 20080106
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: CONDITIONS, NOT DISABILITY

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20001128 - 20010822              Active: 20010823 – 20050821 HON

Period of Service Under Review:
Date of Enlistment: 200 50822      Period of E nlistment : Years Extension          Date of Discharge: 20070524
Length of Service : Yrs M on ths 02 D a ys   Education Level:         Age at Enlistment:       AFQT: 86
Highest Rank /Rate : FC3    Evaluation M arks: Performance: 3.0 ( 1 )    Behavior: 2.0 ( 1 )         OTA: 3.00
Awards and Decorations ( per DD 214): CAR NDSM GWOTSM SSDR

Applicant successfully completed IMPACT/Level 5 treatment on 20030605 and 20030725. [Extracted from CO’s message in case file].
Applicant incurred DUI/DWI and alcohol related incident after having received Level I treatment that resulted from a previous DUI/DWI. Date of incident: 20060129 (ARI). Date(s) of previous incident(s) 20030519 (DUI), 20030625 (DUI). [Extracted from CO’s message in case file].

 SARP Norfolk, VA: Determined Applicant amenable and was afforded Level III treatment from 20060501-20060526. Applicant dropped from treatment two days prior to completion due to “non compliance” extending from Nicotine cessation and a conflict with a counselor, but not from an alcohol related incident. [Extracted from CO’s message in case file].
20060129: Public Intoxication, Civilian Police [Extracted from CO’s message in case file].

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20010823 TO 20050821 ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:



Types of Documents Submitted/reviewed (con’t)

 Other Documentation (Describe) :
-        MILPERSMAN Article 1910-152 (3 pgs),
-        Student Academic Record,
-        Letter from BCNR ,
-        Letter of Appreciation from Birdneck Elementary School

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 29 April 2005 until Present, Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE

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 .




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

Applicant’s Issues

 1. RE Code is incorrect and should be changed.
2. Narrative reason for separation is erroneous .

Decision

Date : 20 08 0828         Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 : The Applicant contends his reenlistment code of E-4 is erroneous and should be changed to RE -1. either 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 , for additional information regarding s .

: ( ) . The Applicant contends his narrative reason is incorrect since he remained sober after he was prematurely released from Level III treatment and remained incident free until discharged. The Applicant also submitted character statements and academic records in support of his request. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Pursuant to MILPERSMAN 1910 -152, command s shall process for administrative separation all members considered to be treatment failures unless a written waiver is obtained. Any member who fails to participate in, fails to follow or fails to successfully complete a medically prescribed treatment plan is deemed a treatment failure . The record reflects on 23 May 2006 the Applicant was discharged from the Substance Abuse Rehabilitation Program Norfolk, Virginia as a treatment failure. On 8 June 2006, the Applicant’s commanding officer submitted a request for waiver, strongly recommending his retention . However, this request was denied as evidenced by a message from COMNAVPERSCOM , DTG 281007Z JUN 06 , directing the commanding officer to initiate administrative separation processing due to t h e Applicant’s inability to abstain from alcohol abuse. Based on a review of the record the Board determined the requirements for separation under MILPERSMAN 1910 -152 ha d been met . The Applicant’s record and statement regarding his premature departure from treatment both confirm he di d not complete treatment and was not granted a waiver. The Applicant’s argument that he did not have an alcohol incident after l e aving treatment is not persuasive since fa ilure to complete medically prescribed treatment , for whatever reason, is also a basis for separation. The summary of service clearly documents that alcohol rehabilitation failure was the reason the Applicant was discharged. The evidence of post service conduct while commenda ble did not provide a basis to change the narrative reason. Based on the foregoing evidence, the Board found the Applicant was properly discharged and determined a change in the narrative reason would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found


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, provi ded 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 grante d 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.
Employmen t / 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 or is referred to a court martial 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 other medical related reasons. 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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