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NAVY | DRB | 2010_Navy | ND1000215
Original file (ND1000215.rtf) Auto-classification: Denied

ex-GMSA, USN
Current Discharge and Applicant’s Request
Application Received: 20091027
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)        20000823 - 20001029     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20001030     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030130      Highest Rank/Rate: GMSN
Length of Service : Y ear ( s ) M onth ( s ) 01 D a y ( s )
Education Level:        AFQT: 58
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 2.5 ( 2 )        OTA: 2.84

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :

- 20020605 :      Article (Failure to obey an order or regulation), 2 specifications
         Article (Uttering worthless checks), 9 specifications
         Awarded: Suspended: [Extracted from Evaluation Report and Counseling Record dated 20020718 and retention warning dated 20020607.]

S CM :   

SPCM:   

C C : 1

         - Civil ian a rrest and conviction for p etty larceny, underage drinking, drunk and disorderly conduct , and possession of false identification card. [Extracted from retention warning dated 20020607]

Retention Warning Counseling :

- 20011002 :       For a civil conviction on 20010919 as a result of your arrest 20010719 for the following: Petty larceny, underage drinking, drunk and disorderly , and possession of a false ID card.

- 20020607 :       For failure to obey an order or regulation (2 specifications) and uttering worthless checks (9 specifications) .





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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION.

 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 .

C. Chief of Naval Operations Instruction ( OPNAVINST 5350.4C ), D rug and Alcohol Abuse, Prevention, and Control dated 15 Oct 2003 .



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

Applicant’s Issues

 1.        Nondecisional issues : Applicant seeks a change to his assigned re-enlistment code and seeks an upgrade in discharge characterization of service in order to be eligible to re-enlist in the Armed Forces.

2.       Decisional issues : The Applicant contends that his discharge characterization of service was inequitable as it was based on youth ful immaturity related to alcohol use and abuse and was not indicative of his overall performance or conduct ; as such, Applicant requests an upgrade in the characterization of his service at discharge to Honorable.

Decision

Date: 20 1 1 0114             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 Applicant identified one decisional issue of equity for the NDRB’s consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and of propriety.

The Applicant enlisted into the naval service for 4 years with a 12 - month extension at the age 18 for a Gunners Mate/Navy Diver Challenge enlistment guarantee program with a $5,000 bonus upon completion of training . He received an enlistment waiver for pre-service use of marijuana and further acknowledged his complete understanding of the Navy Substance Abuse Policy – in writing – on 04 July 2000. The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention-counseling warnings and one n on-judicial punishment for o f the Uniform Code of Military Justice (UCMJ) as follows:

•         Article 92 ( Failure to obey an order or regulation, 2 specifications)
•         Article 134 ( Uttering worthless checks, 9 specifications ) .

Additionally, the Applicant had a civilian conviction for petty larceny, underage drinking, drunk and disorderly conduct, and possession of a false identification card. The Applicant was administratively separated on 30 January 2003 in accordance with the Naval Military Personnel Man u al (MILPERSMAN), paragraph 1910-152 – Alcohol Rehabilitation Failure. The NDRB was unable to review the Applicant’s administrative separation package as it was not present in his official military records and had to presume regularity in the conduct of government affairs in that the Applicant was afforded all his rights at separation in accordance with the MILPERSMAN . Based on the Applicant ’ s time in service and recommended characterization of service at discharge, his administrative separation did not warrant an administrative discharge board hearing.

The Applicant provided no additional documentation to rebut any presumption of regularity in governmental affairs by the NDRB.

: (Nondecisional). The Applicant seeks relief in the form of a change in his re-enlistment code (RE-code) and seeks a n upgrade in discharge characterization of service in order to be eligible re-enlist . The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records can make changes to reenlistment codes. An unfavorable “RE” code is, in itself, not a bar to reenlistment. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. A request for a waiver may be submitted through a recruiter during the processing of a formal application for reenlistment.
: (Decisional) (Propriety/ ) . The Applicant contends that his discharge characterization of service was inequitable as it was based on youthful immaturity related to alcohol use and abuse and was not indicative of his overall performance or conduct; as such, Applicant requests an upgrade in the characterization of his service at discharge to Honorable. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service .

 (Equity) Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy and that the Applicant's youth or age was not a mitigating factor in his misconduct . The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women, regardless of age, willing to endure the hardships and sacrifices required in order to serve their country. When that Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A General (U nder H onorable C onditions ) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweighs the positive aspects of the member’s military record. The NDRB determined that the Applicant’s documented military and civilian misconduct, coupled with his repeated alcohol - related incidents and disenrollment from dive school , were significant negative aspects in the Applicant’s performance and conduct and that they outweighed the positive aspects of his performance and conduct. As such, the NDRB determined that an upgrade to an Honorable characterization of service at discharge would be inappropriate , t hat a General (Under Honorable Conditions) discharge was equitable and warranted, and that the separation from the Naval Service was consistent with others in similar circumstances . Accordingly, relief on the grounds of equity is denied.
(Propriety ) It is the policy of the Navy that Commands shall process for administrative separation all members who are considered to be alcohol treatment failures , unless a written wai v er is obtained . Accordingly, the Applicant was separated from the Naval Service pursuant to paragraph 1910-152 of the MILPERSMAN for failure of alcohol rehabilitation treatment.

An a lcohol - related incident is an offense punishable under the Uniformed Code of Military Justice (UCMJ) or civilian authority committed by a member where, in the judgment of the member's C ommanding O fficer , the consumption of alcohol was the primary contributing factor. The Applicant was convicted in civil court of underage drinking, disorderly conduct, and possession of a false identification card in September 2001. He was counseled via a NAVPERS 1070/613 written counseling. In June 2002, the Applicant was subject ed to a nonjudicial punishment for violation of lawful orders for underage drinking among other offenses. The command referred the Applicant to the Addictions Rehabilitation Clinic , Naval Hospital Jacksonville, Florida for intensive outpatient treatment of his alcohol problems. The Applicant was diagnosed with A lcohol D ependence in accordance with the Diagnostic and Statistical Manual of Mental Disorders (30 3.9 ) , fourth e dition. Upon completion of treatment, the Applicant was assigned to a formal aftercare program that included abstention from alcohol until of legal age. He was advised further that any alcohol - related incident after treatment, or a second alcohol rehabilitation treatment, would be classified as a treatment failure and would warrant separation from the Naval Service.

In accordance with the MILPERSMAN, Alcohol Rehabilitation F ail ure is classified as the inability or refusal to participate in, cooperate in, or successfully complete a program for alcohol rehabilitation or the w illful failure to complete the medically prescribed treatment , or failure to complete medically prescribed treatment due to a subsequent alcohol incident. Conduct that amounts to a second incident shall be determined by the member's c ommanding officer. The Applicant completed intensive outpatient treatment on 16 Aug ust 2002 and was placed on an aftercare plan and returned to his command for monitoring of compliance. On or about 03 January 2003, the Applicant was admitted to a medical treatment facility for a suicidal ideation after consuming alcohol. Based on this event, the command opted to separate the Applicant for alcohol rehabilitation failure – failure to comply with prescribed treatment plan and an alcohol - related incident after treatment.

The NDRB determined that the discharge action was proper, was in compliance with Naval regulations, and was supported by the preponderance of evidence as contained in the Applicant ’ s medical and service record s . As such, the NDRB determined no impropriety in the discharge and no change was warranted. Relief denied.

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 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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