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NAVY | DRB | 2008_Navy | ND0801563
Original file (ND0801563.rtf) Auto-classification: Denied

ex-AD3, USN
Current Discharge and Applicant’s Request
Application Received: 20080715
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: MEDICAL OR HIGH-YEAR TENURE

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19880318 - 19981130                 Active: 19881201-19920915
                                                                       19920916-19951121
                                                                19951122- 20000309
                                                                        20000310-20030410
Period of Service Under Review:
Date of Enlistment: 20030411      Period of E nlistment : Years Extension   Date of Discharge: 20060115
Length of Service : Y ear s M onth s 05 D a ys      Education Level:         Age at Enlistment:       AFQT: 41
Highest Rank /Rate :       AD1       Evaluation M arks: Performance:    4.5 ( 4 )   Behavior: 2.5 ( 4 )         OTA: 3.79
Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP ’s :
- 20041020 : Art icle 111 ( Drunken or reckless operation of a vehicle )
Article 134 ( Fleeing the scene of an accident )
Awarded : Susp ended :

- 20040415 : Art icle 92 ( Failure to obey order or regulation )
Awarded : Susp ended : (Vacated 20041008)

S CM : SPCM: C C : Retention Warnings:

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ 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 Congress m ember :

Other Documentation (Describe) :





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

Applicant’s Issues

 1. Employment opportunities.
2. Mitigating circumstances.
3. Falsely charged with drunk driving.
 4. Post-service treatment by the VA.
 5 . Requests pension.

Decision

Date: 20 0 9 0205             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall ALCOHOL REHABILITATION FAILURE .
Discussion

 : 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 , specifically the paragraph concerning , regarding .

: ( ) . The Applicant contends he is entitled to a change in the narrative reason for separation due to the circumstances which mitigated his misconduct. Specifically the Applicant contends he was suffering from depression , receiving psychiatric care , had numerous family and financial problems, was forced to change to a new rating, was a member of a troubled squadron, and had requested a humanitarian transfer but was denied. I n 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. The Applicant’s re cord of service was marred by one retention warning and two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Disobeying a lawful order); Article 111 (Drunk driving); and Article 134 (Fleeing the scene of an accident). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court - martial. The command did not refer the Applicant for a court - martial but opted instead to retain the Applicant on active duty.

The record also shows the Applicant was diagnosed with alcohol abuse on 26 September 2005, completed IMPACT substance abuse training on 2 February 2005, and was determined to have failed alcohol rehabilitation by his comman ding officer on 25 January 2006. The Applicant was subsequently discharged for the narrative reason of “Alcohol Rehabilitation Failure”. While the Applicant may feel his family and personal circumstances were the underlying causes of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to those problems. T he NDRB particularly notes the documented evidence related to the Applicant’s depression and other mental health concerns, including evidence of post-service treatment provided by the Veterans Administration ( VA ) , does not relieve the Applicant from responsibility for his actions. The Applicant provides no documented evidence of a troubled squadron or that he had been denied a humanitarian transfer. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because he was falsely charged with drunk driving. The NDRB noted the record of evidence clearly shows the Applicant waived his right to trial by court-martial . If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial he would have had the opportunity to mount a defense against the charges against him. The Applicant submitted no evidence to support his contention therefore the NDRB must rely upon the


presumption of regularity in the conduct of government affairs and maintain the violation of Article 111 as valid. The awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 4: ( ) . The Applicant contends he is entitled to a discharge upgrade because he is receiving treatment for mental health problems by the VA. The Applicant should understand the VA determines entitlement to benefits independent of the characterization of service determined by the Navy. Moreover, there is no requirement or law that grants recharacterization solely on the issue. The NDRB determined an upgrade would be inappropriate.

I ssue 5 : ( ) . The Applicant requests entitlement to retired pay. The NDRB does not have authority to determine matters related to pay. The Applicant is advised to petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for this entitlement. More information is available online at http://www.donhq.navy.mil/bcnr/bcnr.htm.

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

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 .

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 and 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, 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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