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NAVY | DRB | 2010_Navy | ND1000225
Original file (ND1000225.rtf) Auto-classification: Denied

ex-AEAN, 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)        20051129 - 20060417     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060418     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090604      Highest Rank/Rate: AE3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 94
Evaluation M arks:         Performance: 3.8 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 3.18

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :

- 20081016 :      Article (Drunken or reckless operation of vehicle)
         Awarded: EPD Suspended: FOP

S CM :    SPCM:

C C :

- 20081119 :       Offense: DUI – ( BAC - .20 )
         Sentence : Fine $250.00, restricted drivers license, house arrest for 12 months

Retention Warning Counseling :

- HSC 28: Counseled on completion of Level I Impact Training for alcohol - related incident. Applicant advised on Squadron Alcohol policy , any violation of the UCMJ will not be tolerated and disciplinary or administrative processing for failure to comply.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ ALCOHOL REHABILITATION FAILURE ”

The NDRB will recommend to the C ommander, 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:           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), 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 .



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: (Equity) The Applicant contends that his discharge characterization of service was inequitable as it was based on youthful immaturity and poor stress control related to personal problems . Further, the reason for separation was not indicative of his overall performance or conduct in service ; as such, Applicant requests consideration for an upgrade in the characterization of his service at discharge to Honorable.

Decision

 Date: 2011 0114             Location: Washington D.C.        Representation:

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 N aval S ervice for 4 years with a 12 - month extension at the age 23 for a n Aviation Avionics Maintenance Technician enlistment guarantee program with a $ 7 ,000 bonus upon completion of training and a $6,000 college credit bonus . He received an enlistment waiver for pre-service use of marijuana with conviction and a serious offense , law violation conviction. The Applicant further acknowledged his complete understanding of the Navy Substance Abuse Policy – in writing – on both 01 Nov 2005 and 18 April 2006 .

The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) retention-counseling warning and one non-judicial punishment for of the Uniform Code of Military Justice (UCMJ) : Article 111 ( Drunken or reckless operation of a vehicle ). Additionally, the Applicant had a civilian conviction for driving a motor vehicle under the influence of alcohol with a blood alcohol content (BAC) of .20%.

The Applicant was separated administratively on 04 June 2009 in accordance with the Naval Military Personnel Manual (MILPERSMAN), paragraph 1910-152 – Alcohol Rehabilitation Failure. The NDRB review ed the Applicant’s administrative discharge documentation in his official military personnel file; the Applicant was notified of the command’s intent to recommend his separation from the Naval Service with an Under Other Than Honorable characterization of service. The Applicant was notified of dual reasons for separation: (1) Commission of a Serious Offense (1910-142); and (2) Alcohol Rehabilitation Failure (1910-152). In accordance with the MILPERSMAN, the Applicant was notified and afforded his rights under the board notification procedure. The Applicant elected to consult with a qualified legal counsel, elected to have an administrative discharge hearing board, and elected to submit a statement to the Separation Authority .

The Applicant provided a personal statement, letters of recommendation, certification of post - service training, and a criminal record background check for the NDRB’s consideration. There is no law or regulation to upgrade an unfavorable discharge based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the re - characterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.
: (Nondecisional). The Applicant seeks relief in the form of an upgrade in discharge characterization of service in order to be eligible to re-enlist. T he 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 autho rized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. An unfavorable “RE” code is, in itself, is not a bar to reenlistment . 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 and poor stress control related to personal problems. Further, the reason for separation was not indicative of his overall performance or conduct in service ; 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.

(Propriety) It is the policy of the Navy that c ommands shall process for administrative separation all members who are considered to be alcohol treatment failures, unless a written wa i ver is obtained. Additionally, c ommanders may separate members for the commission of a civilian or military offense when the specific circumstances warrant separation and the offense would warrant a punitive discharge per the Manual for Courts-Martial. V iolation of Article 111 of the UCMJ constitutes the “commission of a serious offense ; ” t his specific violation is punishable by a Bad Conduct Discharge and 6 months confinement if adjudicated by a Courts-Martial. Though the Applicant was dual notified regarding the basis for separation, his command chose to pursue separation from the Naval Service pursuant to paragraph 1910-152 of the MILPERSMAN - A lcohol R ehabilitation Failure .

An a lcohol - related incident is an offense punishable under the UCMJ or civilian authority committed by a member where, in the judgment of the member's Commanding Officer, the consumption of alcohol was the primary contributing factor. In accordance with the MILPERSMAN, Alcohol Rehabilitation Failure is classified as : (1) the inability or refusal to participate in, cooperate in, or successfully complete a program for alcohol rehabilitation ; or (2) the willful failure to complete the medically prescribed treatment ; or (3) failure to complete medically prescribed treatment due to a subsequent alcohol incident. Conduct, which amounts to a second incident, shall be determined by the member's commanding officer.

The Applicant was determined to have had an alcohol - related incident based on a civilian charge of drunken and disorderly conduct. He was screened by counselors and was recommended for attendance at L evel 1 Impact Treatment P rogram ; he successfully complet ed the required treatment program on 13 June 2008. The Applicant returned to his command with a formal, post-treatment aftercare program. Furthermore, the Applicant acknowledged in writing that any further alcohol - related incident, as determined by his command, would normally be viewed as a corresponding rehabilitation failure, warranting administrative separation. The Applicant was further counseled via a NAVPERS 1070/613 written retention- counseling warning regarding the C ommand ’ s alcohol policy and the potential consequences for his failure to abide by it . On 16 Oct 200 8 , the Applicant was subject to a nonjudicial punishment for violation of Article 111 (DUI) – a second alcohol - related incident, post treatment . Based on this event, the command opted to pursue administrative separat ion of the Applicant for alcohol rehabilitation failure ; specifically, failure to comply with prescribed treatment plan and an alcohol - related incident after treatment. The Applicant was afforded the opportunity to appear before an administrative discharge hearing board. The board found that the preponderance of the evidence supported the proposed basis for separation and further recommend ed separation of the Applicant with a General (Under Honorable Conditions) characterization of service at discharge.

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 official service record s . As such, the NDRB determined no impropriety in the discharge and no change was warranted for propriety . Accordingly, r elief denied.

(Equity) The Applicant contends his disciplinary problems were the result of his inappropriate handling of stress brought about by his personal family situation (a complicated first pregnancy) and that the characterization of his discharge should be upgraded because it was not indicative of his overall job - related performance. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their honorable discharges. In fairness to those service members, C ommanders and S eparation A uthorities are tasked with ensuring that deserving Sailors are properly recognized and that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to utilize the numerous services available for

service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. 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 , age , or personal stressors were in any way a mitigating factor in his misconduct.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A General (Under Honorable Conditions) 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 multiple alcohol - related incidents , 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, that 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.

 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 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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