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NAVY | DRB | 2009_Navy | ND0900510
Original file (ND0900510.rtf) Auto-classification: Denied

ex-CSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090105
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20020115 - 20020408     Active:  

Period of Service Under Review:
Date of Enlistment: 20020409     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060524      Highest Rank/Rate: CSSN
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 3.35

Awards and Decorations ( per DD 214):      NAVY “E ”

Periods of UA /C ONF : UA: Unable to determine /

NJP :
- 20030813 :       Art icle 92 (Failure to obey an order or regulation)
         Article 108 (Destruction of military property)
          Article 128 (Simple assault)
         Article 134 (Disorderly conduct - drunkenness)
         Awarded : Susp ended :

- 20040127 :       Article 86 ( UA, a bsence without leave )
         Awarded : CCU Susp ended :

S CM : SPCM: C C :

Retention Warning Counseling :

- 20030813 : For failure to obey order or regulation, destruction of military property, assault and disorderly conduct -
drunkenness.

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:              


Related to Post-Service Period: (cont)

         Additional Statements :

                   From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :

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. He was never offered or provided alcohol treatment.
2. He never failed alcohol rehabilitation treatment.
3 . He was e x periencing depression .
4. Post service conduct.

DECISION

Date: 20090 4 30             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

 : ( ) . In seeking an upgrade to general (under honorable co n di tions), the Applicant through his representative contends he was never offered or provided alcohol rehabilitation treatment. The Applicant further contends he never failed alcohol rehabilitation treatment. 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. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason or characterization of discharge if such a change is warranted.

The Applicant’s record is marred by one retention warning and two NJP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation ); Article 108 ( Destruction of government property ); Article 128 ( Simple assault ); and Article 134 ( Disorderly conduct , drunkenness) . The evidence of record also reflects the Applicant ’s history of alcohol abuse as demonstrated by the necessity for a pre-service Driving Under Influence W aiver to enlist in the Navy and a performance evaluation f rom 16 May 2006 which indicated he lacked motivation , and despite counseling and mentoring , disobeyed orders of the commanding officer regarding alcohol use . Furthermore, t he Commanding Officer’s Recommendation for Administrative Separation of 23 June 2006, notes the following: 1) In July 2003, the Applicant had continual problems with t h e use of alcohol resulting in the destruction of government property and simple assault on a shipmate, 2) In April 2006, t he Applicant got into a fight with another fellow gunslinger where use of excessive alcohol was a major factor, and 3) T he Applicant wa s provided rehabilitation treatment on two occasions but failed to act responsib l y and was separated with a characterization of general (under honorable conditions).

The Applicant’s in-service medical records were not available for review nor provided by the Applicant. Nonetheless, in the absence of the Applicant’s medical records, the Board applied the presumption of regularity in this case in determining the discharge due to alcohol treatment failure was proper. Based on a review of the record, evidence and issues presented by the Applicant, the Board determined the Applicant’s contentions that he did not receive treatment for alcohol abuse and never failed alcohol treatment are without merit and contradicted by the evidence of record , especially comments made by the commanding officer . Furthermore, the post service medical records and evidence of alcohol rehabilitation treatment received after being discharged does not negate the evidence of record for in-service misconduct as previously discussed. The Board also determined , based on the facts unique to this case and the seriousness of the offenses committed , an upgrade to honorable is not appropriate or justified : The awarded discharge was appropriate.

: ( ) . T he Applicant contends his misconduct was because he was experiencing depression due to the death of his mother’s fianc é , death of his grandmother, witnessing the recovery and wreckage of a fatal jet crash piloted by an officer he had known and s erved with , and the amputation of his best friend’s lower left leg. In support of these claims he provided a letter f r om his mother and an internet article concerning the jet crash. It was noted the letter from his mother made no mention of the two deaths or the friend’s leg amputation and the article concerning the jet crash explicitly states neither the pilot’s body or any w reckage were ever recovered. Additionally, it was noted the aircraft crash occurred 27

June 2004 : T he majority of the Applicant’s documented misconduct occurred well before this date with the exception of the fight (which substantiates the alcohol related incident and the alcohol rehabilitation failure) during April 2006 which is mentioned in his 16 May 2006 performance evaluation .

The Applicant states he was approached by a Chief Petty Officer who encouraged him to return to the base and address his issues . Upo n returning to the barracks , the Applicant alleges someone from the Administrative Department referr ed him to the chaplain , but he did not think it wou ld help . The Applicant has also provided documentation regarding his completion of the Department of Veteran’s Affairs Substance Abuse Treatment Program on 3 September 2008 , medical documentation of 22 O ctober 2008 , reflecting h is post service diagnos is of Alcohol Dependen ce and Depressive Disorder and a P sychiatric consult of 7 November 2008 , wherein he complained of “mood ”, anxiety , and nightmares after his military experience . He also states he d id not witness combat . The Applicant’s in-service medical records were not found in the record nor provide d by the Applicant. Additionally, he did not provide any in-service or post service medical records to s ubstantiate the allegations of P ost T raumatic S tress D isorder . The evidence of record indicates the Applicant abused alcohol prior to entering the military, while on active duty and his abuse of alcohol resulted in his involuntary separation from the Navy. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant through his counsel also submitted character references and a letter from the Veteran’s Affairs, Program Administrator outlining his participation in the Recovery Support Program. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of their d ischarge characterization. . To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided an upgrade would be inappropriate. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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 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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