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NAVY | DRB | 2010_Navy | ND1000265

Original file (ND1000265.rtf) Auto-classification: Denied

ex-PSSN, USN

Current Discharge and Applicant’s Request

Application Received: 20091103

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:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 20060227     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090717      Highest Rank/Rate: PS3
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 19 D a y ( s )
         Active   Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3.8 ( 5 )      Behavior: 3.8 ( 5 )        OTA: 3.70
Awards and Decorations ( per DD 214):      P istol

Periods of UA /C ONF :

NJP :
- 20090629 :       Article (Drunken or reckless driving)
         Article 112 (Drunk on duty)
         Awarded : Susp ended:

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:

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”

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:          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: The Applicant seeks an upgrade in characterization of service to Honorable in order to gain eligibility to the Post 9/11 G.I. Bill benefits.

Decision

Date: 20 1 1 021 1 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 NDRB 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 did not identify any decisional issues for the NDRB’s consideration; however, 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 propriety.

The Applicant’s record of service reflects entry into the military with waiver for a pre-service DUI conviction. The Applicant enlisted at age 27 under an 8 year enlistment contract in the Navy Training and Administration of Reserves ( TAR ) Program with a guaranteed rank of E-3 due to having successful ly complet ed a four-year college degree program . Throughout his enlistment period, the Applicant received one NAVPERS 1070/613 retention-counseling warning. The Applicant’s period of enlistment under review included one nonjudicial punishment for violation of the following Articles of the Uniform Code of Military Justice: A rticle 111 ( Drunken or Reckless Driving of a vehicle ) and A rticle 112 ( Drunk on duty ) . The Applicant’s record of service further reflects that he attended a 35-day partial inpatient treatment program for alcohol dependence and was assigned to a formal a ftercare treatment program and returned to his command for monitoring. The Applicant was later diagnosed with alcoholism (existed prior to entry) by appropriately credentialed mental health care provider s following a suicidal ideation subsequent to being cited for driving under the influence of alcohol and being drunk on duty while on his command - monitored alcohol treatment aftercare program .

Nondecisional Issues - The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility for V A Post 9/11 educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, 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 solely to a determination of the propriety and the equity of a discharge.

: (Decisional) ( ) . The Applicant did not identify an y issues of impropriety or inequity for the NDRB’s consideration. However, 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 propriety . In accordance with Article 1910-152 of the Naval Military Personnel Manual ( MILPERSMAN ) , commands shall process for administrative separation, all members considered treatment failures - unless a written waiver is obtained from the Commander , Navy Personnel Command (NAVPERSCOM). In accordance with Article 1910-152, the following is classified as a treatment failure: any serious alcohol incident occurring subsequent to treatment that was precipitated by a previous incident . For purposes of this provision, treatment include s all Medical Treatment Facility (MTF) or Alcohol Treatment Facility (ATF) directed early intervention services provided within the Continuum of Care ( e.g., Alcohol Impact or equivalent and greater ). The member’s commanding officer shall determine that conduct which amounts to a second incident . Additionally, any member who fails to participate in, fails to follow, or fails to complete successfully the medically prescribed and command-approved aftercare plan is also an Alcohol Rehabilitation Treatment Failure. Any service member who returns to alcohol abuse at any time during member’s career - following treatment - and is determined to be a treatment failure by an appropriately licensed practitioner or Medical Officer is also considered to be an Alcohol Rehabilitation Treatment Failure. In accordance with Article 1910-152 of the MILPERSMAN, a n alcohol incident is an offense punishable under the 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. Further more , t he characterization of service at discharge should be General (Under Honorable Conditions) ; unless an Entry Level Separation or Honorable characterization of service is clearly warranted .

The Applicant enlisted in the Naval S ervice with a wa i ver to enlistment standards due to a civilian conviction for driving under the influence of alcohol (DUI). After being evaluated by an appropriately credentialed mental health care provider and diagnosed alcohol dependant (DSM-IV Axis I, code 303.90), the Applicant was assigned to a 35-day, partial hospitalization, addiction treatment program from 20 August to 25 September 2007. The Applicant successfully completed the treatment program and was returned to his command with an after-care treatment program to be monitored by his command and the local substance abuse prevention and treatment program. On 14 June 2009, the Applicant was determined to be drunk on duty and driving a vehicle while under the influence of alcohol. S ubsequently , h e was found guilty at a nonjudicial punishment for violation of Article 111 and 112 of the UCMJ. On 15 June 2009, the Applicant was treated in the emergency room due to a suicidal ideation. The Applicant received treatment to include a mental health evaluation. The diagnosing psychiatrist determined the Applicant to be an alcohol treatment failure and further diagnosed him with alcoholism (DSM-IV, Axis I, C ode 315 ( A lcoholism), E xisted P rior to E ntry (EPTE) ). Based on this alcohol - related incident, the c ommand, and the medical officers , determined the Applicant to be an Alcohol Rehabilitation Treatment failure. The Applicant was discharged subsequently with a General (Under Honorable Conditions) characterization of service.

The Applicant’s administrative separation package was not found in his official service record. The NDRB presumed regularity in the conduct of governmental affairs in that the Applicant was afforded the right to consult with qualified legal counsel and submit a written statement to the Separation Authority , if he desired , prior to separation. As the Applicant was separated with a General (Under Honorable Conditions) discharge with less than six years of active service, he did not warrant the right to an administrative discharge b oard . An Honorable characterization of service at discharge is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.

Based on the Applicant’s record of service, the NDRB determined that the Applicant ’s service was honest and faithful, but that significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record . The NDRB found the characterization of the Applicant's discharge was proper and was equitable and was consistent with the characterization of discharge given others in similar circumstances. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the narrative reason for discharge or the characterization of the applicant’s service at discharge. The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief was not warranted. Therefore, the character of the discharge and the reason for discharge shall not change. Relief denied.

S ummary: 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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NAVY | DRB | 2010_Navy | ND1000265

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