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NAVY | DRB | 2009_Navy | ND0901658
Original file (ND0901658.rtf) Auto-classification: Denied

ex-CTMSN (SW), USN
Current Discharge and Applicant’s Request
Application Received: 20090527
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)        20010822 - 20011003     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011004     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050811      Highest Rank/Rate: CTM3
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 94
Evaluation M arks:         Performance: 3.2 ( 4 )      Behavior: 2.2 ( 4 )        OTA: 3.07

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20030124 :       Article 92 (Failure to obey lawful order, to not operate a government vehicle without a driver’s license)
         Article 108 (Damage to government vehicle of a sum of less than $100.00)
         Awarded : Susp ended:

- 20031023 :       Article 86 (UA 2.5 hours)
         Article 134 (Incapacitated for duty)
         Awarded : Susp ended:

- 20041213 :       Article 92 (Failure to obey order or regulation)
         Awarded : Susp ended:


S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20030124 :       For violation of article 92, failure to obey a lawful order to not operate a motor vehicle without a driver’s license; violation of article 108, suffering damage to a government vehicle less than $100.00 on or about 20021214.

- 20031023 :       For violation of article 86 and article 134 (incapacitated for duty)


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.       Wants to use the GI Bill money to further his education .
2.       Exemplary in-service performance.
3.       Post-service conduct.
Decision

Date: 20 10 0319            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 NAVPERS 1070/613 (Page 13) warnings and three for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence (UA) for 2.5 hours ), Article 92 ( Failure to obey an order or regulation – 2 specifications), Article 108 (Damage to a government vehicle of a sum of less than $100.00), and Article 134 ( Incapacitation for duty ) . Additionally, the record reflects on 30 Septembe r 2003 the Applicant received a Substance Abuse Rehabilitation Program (SARP) screening at Naval Hospital, Pensacola , Florida after he reported to work on 22 September 2003 smelling of alcohol with a blood alcohol content (BAC) of .06 . H e was diagnosed as an alcohol abuser and recommended for outpatient treatment. On 17 October 2003 the Applicant was referred for screening again due to an unauthorized absence and BAC of .11. During the SARP screening the Applicant reported drinking an average of 5-7 alcoholic beverages seven days a week , was diagnosed as alcohol dependent and recommended for intensive outpatient treatment ( L evel II). The Applicant received extensive outpatient treatment at Naval Hospital, Pensacola, Florida from 23 January 2004 through 12 February 2004 and was placed in an a ftercare program. The Applicant’s prognosis for recovery and continued military service with no further alcohol related problems was guarded based on his struggle with acceptance of his alcoholism and his attempts to hold a goal of moderate drinking until half way through treatment. On 10 January 2005 the Applicant was referred for another substance abuse evaluation due to being observed intoxicated and carrying an alcoholic beverage into a duty van during ammunition offload in Seal Beach. During the screening , it was noted the Applicant continued to drink desp ite knowledge of his diagnosis of alcohol dependence and a recommendation not to drink. The Applicant was not committed to abstinenc e at the time of the evaluation and was recommended for Level II treatment again. Based on the continued alcoholic incidents and the offenses committed by the Applicant, his command administratively processed him for separation . When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and request a General Court-Martial Co nvening Authority (GCMA) review .

: (Nondecisional ) The Applicant is seeking an upgrade to Honorable so that he can use his Montgomery GI Bill to obtain educational benefits. 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.
: (Decisional) ( ) . In seeking an upgrade to Honorable , the Applicant contends while serving aboard the USS HOWARD (DDG 83) his performance was exemplary . The evidence of record refl ects the Applicant had four performance evaluations during this enlistment with an overall performance rating of 3.07 and an overall rating of 2.2 in behavior. Based on a review of the evidence of record, including the Applicant’s performance evaluations, age, years of service and the frequency and seriousness of the offenses committed, the NDRB determined that an upgrade was not warranted.

: (Decisional) ( ) . The Applicant contends he has not had any civil infractions since discharged. The Applicant did not present any documentation for the Board’s consideration. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The Board determined th e Applicant’s statement regarding post-service conduct without documentation to support the same, was not sufficient to form a basis of relief. The Applicant is referred to the addendum, Post-Service Conduct for further information regarding this issue. Additionally, o n page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate or relate directly to your issues in Item 6.” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant’s DD Form 293 , the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant should be aware that post-service conduct alone does not guarantee an upgrade.

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 his 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 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 Disabled American 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 their 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.
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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