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NAVY | DRB | 2010_Navy | ND1000473
Original file (ND1000473.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20091120
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)        20020128 - 20021002     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021003     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070501      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

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

Periods of UA /C ONF : UA: 20040705-20040706, 1 day; 20051202-20051205, 3 days;
CONF:

NJP :

- 20060428 :       Article (UA ), 2 specifications
         Specification 1: 2 hours and 40 minutes on 20060303
         Specification 2: Failure to go to appointed place of duty
         Awarded : Susp ended:

S CM :    SPCM:

CC: 2

- 20050327:      Offense: DUI (BAC .107)
        Sentence: $1150.00 fine; 5 years probation

- 20070120 :       Offense: DUI (BAC .119)
         Sentence : NFIR

Retention Warning Counseling : 3

- 20050706 :       For misconduct and/or substandard performance due to alcohol/drug abuse .

- 20060501 :       For CO’s NJP held on 20060428 for violation of article 86 (2 specifications) UA from unit 2 hours and 40 minutes on 20060303, and failure to go to appointed place of duty.

- 20061230 :       For alcohol abuse.


Administrative Corrections to the Applicant’s DD 214

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

          “ 04JUL05 TO 04JUL06; 05DEC02 TO 05DEC05 ”
        
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 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.        Nondecisional issues : The Applicant seeks an upgrade in his characterization of service at discharge in order to continue his education and to re-enter military service as an officer.

2.       Decisional issues : The Applicant did not identify any specific issues regarding the propriety or equity of his narrative reason for discharge or his characterization of service at discharge.

Decision

Date: 20 1 1 021 7    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 enlisted at age 19 under a 4- year enlistment (with 12 - month extension) for a guarantee of training as a Hospital Corpsman. He was enlisted as a contract E-2 due to completing two years of Junior ROTC training. The Applicant’s record of service reflects entry into the military with a waiver for pre-service drug use (marijuana) . Throughout his enlistment period, the Applicant received three NAVPERS 1070/613 retention-counseling warning s . The Applicant’s period of enlistment under review included one nonjudicial punishment for violation of Article 86 of the Uniform Code of Military Justice . The Applicant’s record of service further reflects two civilian convictions for Driving Under the Influence of Alcohol (BAC .119 and BAC of .107). The Applicant self-referred for alcohol abuse treatment in October 2004 and attended Impact Training in December 2004. Following the Applicant ’ s first DUI in Mar ch 2005, he was seen and evaluated at the SARP and assigned to an intensive outpatient treatment facility based on a provisional diagnosis of alcohol dependence. The Applicant successfully completed the assigned treatment for his alcohol dependency and was assigned to a formal aftercare treatment program and returned to his command for monitoring. In M arch 2006, while in his assigned aftercare program, the Applicant was refer r ed for a fitness for duty evaluation due to being drunk on duty. The Applicant was subsequently convicted by civil authorities for a second DUI charge that occurred on 20 January 2007.

On 03 April 2007, the Applicant was notified - in writing - of the Command’s intent to administratively separate him from the Naval Service . In accordance with the Naval Military Personnel Manu a l (MILPERSMAN), the bas e s for separation w ere : (1) by reason of Alcohol Rehabilitation Treatment Failure ( Article 1 910-152); (2) by reason of Misconduct – Commission of a Serious Offense ( Article 1910-142); and (3), by reason of Misconduct – Pattern of Misconduct ( Article 1910-140). The Applicant was advised that the least favorable characterization of service possible was General (Under Honorable Conditions); he elected to waive his right s to consult with qualified counsel and to submit written matters to the Separation Authority for consideration. The Applicant did not warrant a discharge hearing board.

: Nondecisional Issues - The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility for Veterans Affairs Administration educational benefits and to seek re-entry in the Armed Services as an Officer . Th ese are issue s which the Board cannot form the basis of relief for the Applicant, or ones that the Board does not have the authority to grant the relief for which the Applicant has petitioned. 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. The Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA) who determine s eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility , based on service records and input from an applicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance.

The Applicant is requesting an upgrade to reenlist or re-enter the armed forces. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not author ized to change a reentry code . The Applicant may petition the Board for Correction of Naval Records (BCNR) using DD Form149. When requesting a change, the Applicant should attempt to provide as much documentation regarding h is issue as possible . Their address is: Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

As such, these issues do not serve to provide a foundation upon which the NDRB can grant relief.

: ( NDRB Board Review ) ( ) . 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 . T he NDRB determined that he was properly notified for three reasons for separation and that each basis for separation was warranted and was proper in accordance with the MILPERSMAN. However, given the specifics of the Applicant’s case, the Command directed that Alcohol Rehabilitation Failure be the primary basis for discharge.

In accordance with Article 1910-152 of the 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 includes 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 (CO) 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, an alcohol 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. Furthermore, the characterization of service at discharge should be General (Under Honorable Conditions); unless an Entry Level Separation (ELS) or Honorable characterization of service is clearly warranted.

 The Applicant self-referred for alcohol abuse treatment in October 2004 and attended Impact Training in December 2004. The Applicant’s record of s ervice reflects two subsequent civilian convictions for Driving U nder the Influence of Alcohol (BAC .119 and a BAC of .107). Following the Applicant ’ s first DUI in Mar ch 2005, he was seen and evaluated at the SARP and was assigned to an intensive outpatient treatment facility with a provisional diagnosis of alcohol dependence. The Applicant successfully completed the assigned treatment for his alcohol dependency and was assigned to a formal aftercare treatment program and returned to his command for monitoring. In March 2006, while in his assigned aftercare program, the Applicant was referred for a fitness for duty evaluation due to being drunk on duty. Furthermore, the Applicant was convicted by civil ian authorities for a second DUI , which occurred on 20 January 2007. Based on the arrest and conviction for the second DUI, the Applicant’s command determined that the Applicant was an Alcohol Treatment Failure in accordance with Article 1910-152 of the MILPERSMAN. The Command recommended the applicant be separated due to alcohol treatment failure : f ailure to successfully complete the after-care treatment program ; returning to alcohol abuse ; and a serious alchohol related incident subsequent to completion of a treatment program .

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 determined that the characterization of the Applicant's service at discharge was proper , was equitable , and was consistent with the characterization of service at 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 A pplicant’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. No relief warranted .

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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