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NAVY | DRB | 2010_Navy | ND1000738
Original file (ND1000738.rtf) Auto-classification: Denied

ex-ABFAN, USN
Current Discharge and Applicant’s Request
Application Received: 20100120
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)        20030819 - 20040628     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040629     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070309      Highest Rank/Rate: ABFAN
Length of Service : Y ear ( s ) M onth ( s ) 11 D a y ( s )
Education Level:        AFQT: 40
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 3.58

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20060929 :       Article (Assault)
         Article (Disorderly conduct, drunkenness)
         Awarded : Susp ended:

S CM :             SPCM:             C C :

Retention Warning Counseling :

- 20060830 :       Consuming and/or possessing any amount of alcohol while in the command after care program. Being a victim or a suspect of an incident where alcohol is involved.

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.        Applicant seeks upgrade to obtain G.I. Bill benefits.
2.       Applicant seeks additional award ribbons be added to his DD-214.
3.       Applicant contends his youth and immaturity led to irresponsible conduct involving alcohol that resulted in his discharge .
 4.       Applicant contends his stress and depression led to increased abuse of alcohol that led to his discharge.
5.       Applicant contends his misconduct was an isolated incident in 35 months of honorable service.
Decision

Date: 20 1 1 03 24             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 discharg e 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 propri ety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning to comply with alcohol rehabilitation treatment aftercare requirements (30 Aug 2006) and for o f the Uniform Code of Military Justice (UCMJ): Article 128 ( Assault , striking a DC3 in the face with closed fist multiple times, 21 Sep 2006) and Article 134 ( Disorderly Conduct, drunkenness, aboard Yokosuka Naval Base, 21 Sep 2006). The records indicate that on 4 Feb 2006, the Applicant shoved a fellow shipmate in the berthing spaces and was subsequently sent to Sasebo Naval Base medical for a fitness for duty examination. After a thorough exam and interview, the physician diagnosed the Applicant with Alcohol Abuse. The Applicant was referred to Level II Alcohol Rehabilitation Treatment (Intensive Outpatient) in Yokosuka , Japan , which he completed on 12 May 2006. He was directed to participate in anger and stress management classes and complete a 12 - month rehabilitation after care program. On 21 Sep 2006, the Applicant was involved with an assault on a Sailor (DC3) from another ship in which he punched the Sailor in the face numerous times with a closed fist. The Applicant was sent to medical for examination , which revealed a BAC between .261-.267. The Applicant was then directed to abstain from alcohol use, attend a meeting with a substance abuse program counselor , and attend two or more A lcoholics A nonymous (AA) meetings per month. After receiving commanding officer’s NJP on 29 Sep 2006, the Applicant’s C ommanding O fficer submitted a waiver request to Commander, Navy Personnel Command (dated 26 Nov 2006) asking to set aside the mandatory administrative processing requirement of the Applicant for alcohol rehabilitation failure due to his belief that the Applicant had changed and that he was “an outstanding flight deck crew member, with significant potential for further service . ” On 3 Jan 2007, the Commander, Navy Personnel Command denied the request and directed the Applicant be discharged from the Navy stating , “ t his action appropriate due to SNM’s inability to abstain from alcohol abuse . ” When notified of administrative separation processing using the procedure on 16 Jan 2007 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Co nvening Authority r eview. The Applicant was subsequently d ischarged on 9 Mar 2007 with a General (Under Honorable Conditions) discharge for Alcohol Rehabilitation Failure.

: (Nondecisional) The Applicant seeks an upgrade to obtain G.I. Bill 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.

: (Nondecisional) The Applicant seeks additional award ribbons be added to his DD-214. T he Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review of his record to determine if additional awards should be included in his service record. The NDRB is not authorized to make these changes and can only look at the propriety and equity of discharges.

: (Decisional) ( ) . The Applicant contends his youth and immaturity led to irresponsible conduct involving alcohol that resulted in his discharge. While he may feel this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The NDRB determined 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. However, all members of the Naval Service are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the mission or environment in which assigned. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. T he Applicant’s continued misconduct while in a liberty status brought discredit to himself and the U.S. Navy. The Board determined that the administrative separation of the Applicant was proper and equitable and in accordance with the orders and directives in effect at the time of his separation. Relief d enied.

4 : (Decisional) ( ) . The Applicant contends his stress and depression led to increased abuse of alcohol that led to his discharge. The Board conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to indicate , that 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. Further, the Applicant was sent to Intensive Outpatient (Level II) treatment in May 2006 after his first documented alcohol - related incident in Feb 2006. His second alcohol - related incident , which occurred in Sep 2006 , involved assault , disorderly conduct, and a BAC of approximately .260. After careful consideration, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief d enied.

5 : (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in 35 months of honorable service. After conducting a detailed review of the Applicant’s service and medical record excerpts, the Board noted that the documentation in the records does not support the Applicant’s contention of an isolated incident. The first documented alcohol - related incident occurred in Feb 2006 and resulted in the Applicant being sent to Level II Alcohol Rehabilitation Treatment , which he successfully completed (12 May 2006 ) . The record revealed that four months later , the Applicant was involved in a more serious alcohol - related incident involving assault of another Sailor , disorderly conduct, and a BAC of approximately .260. Though the Applicant’s performance at work was outstanding, his conduct while on liberty did not meet the high standards of conduct expected of members of the Naval Service and brought discredit to himself, his command and the U.S. Navy. Per the Naval Military Personnel Manual (MILPERSMAN), members who fail to attend (refuse), participate in , or complete alcohol rehabilitation or those who incur another alcohol incident after rehabilitation treatment, warrant mandatory processing for administrative separation from the Navy. Although the Applicant’s Commanding Officer submitted a request for waiver of this requirement, it was disapproved by the Commander, Navy Personnel Command who directed that the Applicant be separated as per the MILPERSMAN. After consideration of the facts surrounding the Applicant’s case, the Board found this issue to be without merit and did not provide a basis for which relief could be granted. Relief d enied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and administrative separation p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative rea son 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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