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NAVY | DRB | 2009_Navy | ND0902427
Original file (ND0902427.rtf) Auto-classification: Denied
ex-IS2, USN
Current Discharge and Applicant’s Request
Application Received: 20090828
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)        20010623 - 20020619     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20020620     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070618      Highest Rank/Rate: IS2
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 81
Evaluation M arks:         Performance: 3.6 ( 5 )      Behavior: 4.0 ( 5 )        OTA: 3.63

Awards and Decorations ( per DD 214):      JMUA (2) (2)

Periods of UA /C ONF :

NJP :

- 20070518 :      Article (Failure to obey order or regulation 20070326)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20070518 :      For violation of article on 20070326, NJP held on this date.
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 14 May 2008, 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 .


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

Applicant’s Issues

 1.       Applicant contends his alcohol rehabilitation failure was an isolated incident in an otherwise honorable record of service and deserving of an Honorable characterization of service.
2.       Applicant contends he was n ot counseled .

Decision

Date: 20 10 0930             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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board complete d 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 NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order, regulation ; specifics NFIR but references Applicant not attending alcohol rehabilitation treatment on 13-15 Feb 07 or 27-29 Mar 07 ) . Based on the failure to attend/complete alcohol rehabilitation treatment, processing for administrative separation is mandatory (MILPERSMAN 1910-152) . The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement of rebuttal , or request an administrative board or a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends his alcohol rehabilitation failure was an isolated incident in an otherwise honorable record of service and deserving of an Honor able characterization of service . Per the evaluation and counseling reports within the Applicant’s record, his performance assessments were very strong between November 2002 and February 2006, with above - average marks of 3.8 (Performance) and 4.3 (Behavior), with an overall trait average of 3.79. The Board noted in the Applicant’s statement that he experienced a forced move (Detailer assignment) from Norfolk , VA to Beaufort , SC after having purchased a home in the Norfolk area. He subsequently was unable to meet the existing mortgage obligation or sell the home in a timely manner and lost the home via bank foreclosure. After returning from a shipboard deployment in 2006, he was involved in an alcohol - related incident off base when local police noticed him walking toward MCAS Beaufort . The local police escorted him back to base where he was eventually returned to his command (VFA-86). Based on the alcohol - related incident, the fact that he was already undergoing treatment for depression , and his security clearance/ job specialty rating in the intelligence field , he was referred for early intervention treatment for alcohol abuse . The Applicant stated he did not feel he ha d a drinking problem and since the treatment sessions were scheduled M-F 0800-1700 in conflict with his M-F 1600-0100 duty schedule , he failed to attend.

MILPERSMAN section 1910-152 states the characterization of service for alcohol rehabilitation failure should be Honorable , unless an Entry Level Separation or General (Under Honorable Conditions) is warranted per MILPERSMAN 1910-304. The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as Honorable. The Applicant’s performance and conduct, which form the primary basis for determining the character of service, were noted to be above average during his nearly 5 years of active duty service in the Navy as evidenced by average evaluation and counseling marks of 3.6 (Performance) and 4.0 (Behavior), with an overall trait average of 3.63. Though he failed to attend alcohol rehabilitation treatment, there was no other derogatory information in his record. Based on his overall record of performance and the requirements in section 1910-152 of the MILPERSMAN , the Board determined t he Applicant’s characterization of service should be upgraded to Honorable .

: (Decisional) ( ) . The Applicant contends that at no time prior to treatment refusal was he counseled on the ramifications for failing/refusing treatment and that he learned of the mandatory administrative separation processing at his NJP on 18 May 2007, 30 days before his discharge. Though t he available records do not contain any P age 13 or other documentation assigning the Applicant to early intervention treatment or warning of the ramifications of refusing/failing treatment , the record did contain a Non-completion/Compliance of Early Intervention notification letter, dated 27 Jun 2007, sent to the Applicant’s command from the MCAS Beaufort Clinical Counsel ing Services Department. Since written direction from the command and appropriate counseling via specific documentation is required to enroll a service member in alcohol rehabilitation treatment, the Board presumed regularity in the conduct of government affairs as the Applicant failed to provide any evidence to the contrary.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, 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 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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