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NAVY | DRB | 2009_Navy | ND0901350
Original file (ND0901350.rtf) Auto-classification: Denied

ex-AEAA, USN
Current Discharge and Applicant’s Request
Application Received: 20090421
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)        20040130 - 20041025     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20041026     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080808      Highest Rank/Rate: A EAN
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 91
Evaluation M arks:         Performance: 3.4 ( 7 )      Behavior: 2.5 ( 7 )        OTA: 3.16

Awards and Decorations ( per DD 214):      Rifle Pistol

NJP :
- 20060825 :       Art icle 92 ( Failure to obey an order or regulation )
         Awarded : Susp ended :

- 20080208 :       Article 86 ( Absence without leave )
         Article 92 ( Failure to obey an order or regulation)
         Article 112 (Drunk on duty)
          Awarded : Susp ended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

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 /To Representat ion :            From /To 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.        Personal problems.
2.       Did not fail alcohol treatment.

Decision

Date: 20 0 9 1217             Location: Washington D.C .        R epresentation :

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

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included two nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave - unknown duration), Article 92 Failure to obey an order or regulation – 2 specifications ), and Article 112 ( Drunk on duty). The record also reflects the following : 1) the Applicant had a enlistment waiver for a civil offense (leaving the scene of an accident); 2) per the DD Form 2807 signed on 14 July 2008, the Applicant received level II alcohol treatment from May – June 2008 ; and , 3) per the medical assessment completed on 1 6 July 2008 , the Applicant continued alcohol use when with friends and was counseled strongly against any continued drinking. Per the Applicant’s DD Form 214 he was separated for alcohol rehabilitation failure and assigned a separation code of “JPD” indicat ing he was not entitled to an administrative board. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived right s to consult with qualified counsel, submit a w ritten statement, and request a review by the general courts-martial convening authority . A presumption of regularity of governmental affairs was applied in the absence of an administrative separation package.

: (Decisional) ( ) . The Applicant is seeking an upgrade to Honorable and contends that at the time of discharge he was going through a divorce, his child was taken and he did not have any family members in the area. The Applicant also admits to having a drinking problem, receiving a ticket for underage drinking and failing to seek assistance from his chain of command. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.
A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The NDRB determined that the characterization of service was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and his failure to abstain from alcohol despite training and advice from his provider. Additionally, the NDRB found the evidence of record did not contain sufficient mitigating or extenuating factors to warrant an upgrade.

Issue 2 : (Decisional) ( ) . The Applicant contends that he attended the Alcohol Impact c ourse which is considered as education and he later attended the outpatient level II treatment. The Applicant further contends in February 2008 he incurred a driving under the influence charge, successfully completed the alcohol treatment program and did not fail treatment since the “ IMPACT is being considered education. ” Pursuant to Military Personnel Manual 1910- 152, c ommands shall process for administrative separation all members considered to be treatment failures unless a written waiver is obtained . Examples of treatment failures include: 1) a ny serious alcohol incident occurring subsequent to treatment that was precipitated by a previous incident ( treatment shall include all m edical t reatment f acilit y (MTF) or a lcohol t reatment f acilit y (ATF) directed early intervention services provided within the Continuum of Care, e.g., Alcohol Impact or equivalent ) ; 2) w illful failure to complete medically prescribed treatment or failure to complete medically prescribed treatment due to a subsequent alcohol incident ; and 3) failure to participate in, follow, or failure to successfully complete the medically prescribed and command-approved aftercare plan. Based on the foregoing regulation, the Board has determined that the Applicant met the requirements for separation due to alcohol treatment failure since he had an alcohol incident subsequent to attending the A lcohol I mpact course.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .



ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of higher education (official transcripts); 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 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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