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NAVY | DRB | 2009_Navy | ND0900873
Original file (ND0900873.rtf) Auto-classification: Denied

ex-ICFN, USN
Current Discharge and Applicant’s Request
Application Received: 20090304
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 1910-152 (ALCOHOL REHABILITATION FAILURE)

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        200 0 0 71 2 - 2001 0705
         USNR (DEP)        20010802 - 20011210     Active:            20011211 - 20051209

Period of Service Under Review:
Date of Enlistment: 20051210     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070212      Highest Rank/Rate: IC3
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.97

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : NONE

NJP :
- 20061222 :       Art icle 86 (UA ) 0700, 20061207 – 1 030, 20061207
         Article 134 ( Drunkeness, i ncapacitation for duty)
          Awarded : Susp ended :

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20060324 :       For Physical Fitness Assessment Failure

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 20011211 UNTIL 20051209 ”
         “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ MILPERSMAN 1910-152 ”

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/ 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 :

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. Discharge inequitable because it was based on one isolated incident in 62 months of service with no other adverse action.
2. Discharge based on false accusations of domestic violence for which he was never subjected to disciplinary action.

Decision

Date: 20090625            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 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 A pplicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted. The Applicant’s record of service was marred by one NAVPERS 1070/613 (Page 13) warning , one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, 3.5 hours) and Article 134 (Drunkeness, Incapacitation for duty). Based on the Applicant’s failure of his alcohol treatment program , his command administratively discharge d him. T he command used the Notice of Notification Procedure to notify the Applicant for administrative separation processing, and the Applicant waived his right to consult with qualified counsel and submit a written statement, and was not eligible for an Administrative Board.

: ( ) . The Applicant contends his discharge was inequitable because it was based on one isolated incident in 62 months of service with no other adverse action. Despite a service member’s prior record of s ervice, failure of an alcohol treatment program , even though isolated, warrant s separation from the Naval service to maintain proper order and discipline. Per the USS JOHN F. KENNEDY (CV 67) ltr 1910 Ser CV67-LEG/081 of 25 Feb 07, the Commanding Officer commented, “[The Applicant] proved to be a substandard Sailor whose character and military bearing were a significant departure from that expected of U.S. Navy members. [The Applicant’s] behavior demonstrated a complete lack of respect for authority, and was contrary to good order and discipline.” After reviewing the Applicant’s service record, statement, facts unique to this case, and offenses committed, the Board found the evidence of record did not contain sufficient mitigating or extenuating factors to offset the serious alcohol incident occurring subsequent to treatment . The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his failure to meet the requirements of his contract and falls far short of that required for an upgrade of his characterization of service.

: ( ) . The Applicant conte nds his discharge was based on “ a false accusation of domestic violence which was dropped by the State of Florida . ” The Applicant further contends he brought this matter to the Navy’s attention a nd was never awarded NJP for it, and that his separation resulted from an incident where he “reported to work late under the influence . ” Per the USS JOHN F. KENNEDY (CV 67) ltr 1910 Ser CV67-LEG/081 of 25 Feb 07, the Commanding Officer noted the Applicant was involved in a domestic violence incident that reportedly escalated due to the Applicant’s over indulgence in alcohol. As a result, the Applicant was screened for alcohol dependence and recommended for the Alcohol Impact Course, which he completed on 01 December 2006. Within a week of completing this course, the Applicant reported for duty three and a half hours late with a blood alcohol content of between .004 and .019, thus rendering him an alcohol treatment failure. He was subsequently administratively discharged due to alcohol rehabilitation failure. The evidence of record refutes the Applicant’s contention that he was discharged based on false accusations of domestic violence. T he Board determined there was sufficient evidence to support the discharge based on alcohol rehabilitation failure, a nd found the narrative reason to be proper.

Summary: After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, and Discharge Process, the Board found Therefore, the awarded characterization of service shall remain General (Under Honorable Conditions), and the narrative reason for separation shall remain Alcohol Rehabilitation Failure.

The Applicant remains eligible for a personal appearance hearing until fifteen years from the date of his/her discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Automatic Upgrades .

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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’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 NDRB 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 NDRB 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 NDRB B oard 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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