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NAVY | DRB | 2009_Navy | ND0902188
Original file (ND0902188.rtf) Auto-classification: Denied

ex-PR2, USN
Current Discharge and Applicant’s Request
Application Received: 20090804
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        NONE      Active:            19951005 – 19991004
                                             20020614 - 20070529


Period of Service Under Review:
 Date of Current Enlistment: 20070530     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081231      Highest Rank/Rate: PR2
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 49
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 3.0 ( 3 )        OTA: 3.38

Awards and Decorations ( per DD 214):      EAWS

Periods of UA /C ONF :

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

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 951005 UNTIL 991004 and 020614 UNTIL 070529 ”

The NDRB will recommend to the Commander, 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 /To Representat ion :            From /To Congress m ember :         
Oth er Documentation :   


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

Applicant’s Issues

 1. The Applicant believes his RE-code is incorrect and should be changed.
2. The Applicant contends his discharge was unjust based on his record of service.
3 . The Applicant believes his narrative reason for discharge is inappropriate.

Decision

Date: 2010 0826 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 discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included an alcohol incident with his previous command that required him to be evaluated by a p sychiatrist, S ubstance A buse C ounseling C enter (SACC) in Kaneohe Bay, Hawaii , for substance use disorder. As a result of the scr eening, a diagnosis of “ Alcohol Dependence ” was determined. The Applicant was recommended to attend Level II Intensive Outpatient Tre atment at T ripler Army Medical Center, HI . On 17 Aug 2006, he completed a Drug and A lcohol Treatment Program (ASAM-American Substance of Addiction Medicine 2.5), including aft ercare, at Tripl er Army Medical Center, HI.

In Misawa, Japan, o n 12 October 2008 at approximately 0030, Security Forces were called outside the front gate to investigate a disturbance involving the Applicant and his wife. He and his wife were ap prehended at the front gate for drunk and disorderly conduct. The Applicant was apprehended and taken to security booking . His wife was taken to a m edical facility for further examination and treatment of a head injury due to a fall at the front gate . All witness statements and the polic e investigation documented that the Applicant had been d rinking , indicated by the strong odor of alcohol on his breath. Additionally, he used provoking speeches and gestures to a member of the Security Force and communicated a threat to another member of the m edical command while they were attempti ng to treat his wife .

The Applicant was recommende d for an administrative s eparation for alcohol abuse rehabilitation failure. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request an administrative board. The Applicant appeared before an Administrative Separation Board (ASB), which concluded on 17 November 2008. Unfortunately, the NDRB was unable to retrieve a copy of the ASB proceedings, but the NDRB opined that the ASB rendered an appropriate decision based on all the facts pertaining to the case. Additionally, the NDRB presumes, by a majority vote, that the ASB concluded that the Applicant should be separated from the Navy with a General (Under Honorable Conditions) characterization due to Alcohol Rehabilitation failure. The NDRB noted that the Applicant did serve “Honorably ” from 5 October 1995 to 4 October 1999 and from 14 June 2002 to 29 May 2007. His “General” discharge characterization reflects his last enlistment fr o m 30 May 2007 to 31 December 2008.

: (Nondecisional) The Applicant believes his RE-code is incorrect and should be changed. 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 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.

 : (Decisional) ( ) . The Applicant contends his discharge was unjust based on his record of service. Despite a Sailor’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. 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. D ue to the severity of misconduct and expediency requirement to remove the Applicant from Japan and Naval S ervice , the Navy determined that his misconduct brought discredit to the Naval Service, especially in the eyes of a sister service, who prohibit e d him from coming to the hospital except for emergencies due to statements made during an incident in question . The NDRB determined that the command acted in the best interest of the Navy and his discharge was warranted. Relief denied.

: (Decisional) ( ) . The Applicant believes his narrative reason for discharge is inappropriate. The Applicant was involved in an alcohol related incident. He completed a Drug and Alcohol Treatment Program including aftercare at TripIer Army Medical Center, HI, on 17 Aug 2006. Per Navy Drug and Alcohol Pr ogram policy (OPNAVINST 5350.4C Dru g and Alcohol Abuse Prevention a n d Control), the Applicant became a treatment failure with his alcohol incident after treatment. The determination that a m ember has failed treatment is based on the member's fai lure to meet and maintain n aval standards of behavior with respect to alcohol, rather than so lely on the use of alcohol. Commands shall process for ADSEP all members considered to be treatment failures unless a written waiver is obtained. The NDRB determined that the reason for discharge was warranted. Relief denied.

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 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 , Reenlistment/RE-code and Post-Service Conduct .

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 23, 15 May 2008 until 22 November 2009, Article 1910-152, SEPARATION BY REASON OF ALCOHOL 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 .


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.
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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