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NAVY | DRB | 2010_Navy | ND1001115
Original file (ND1001115.rtf) Auto-classification: Denied

ex-SKSN, USN
Current Discharge and Applicant’s Request
Application Received: 20100330
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)        20050930 - 20060220     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060221     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090715      Highest Rank/Rate: SKSN
Length of Service : Y ear ( s ) M onth ( s ) 24 D a y ( s )
Education Level:        AFQT: 68
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 3.38

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :    

NJP :     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 issue: The Applicant seeks an upgrade in the characterization of his service at discharge in order to access Department of Veterans Affairs educational benefits accorded service members who serve d honorably.

2.       Decisional issue: The Applicant contends that he was not properly separated in that his arrest and civilian conviction was not an alcohol - related offense; as such, he warrants an upgrade in discharge characterization of service. Furthermore, the Applicant contends that his discharge was overly harsh in that he was at the end of his enlistment and the separation caused a forfeiture of his benefits.

Decision

Date: 20 1 1 05 05            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 identif ied two decisional issues 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 both equity and propriety. The Applicant’s record of service reflects entry into the military with waiver for pre-service drug use (marijuana) . The Applicant enlisted at age 19 under a 4 - year enlistment con tract with no extensions . During his period of enlistment, the Applicant did not receiv e any NAVPERS 1070/613 retention-counseling warning s n or did he have any nonjudicial or judicial punishment s for violation s of the Uniform Code of Military Justice . The Applicant’s record of service , however , does reflect his attendance at a 35-day intensive outpat ient treatment program for alcohol dependence (with physiological dependence) and , upon his successful completion of the treatment program, assign ment to a formal aftercare treatment plan and return to his command for continued care and monitoring of compliance . The Applicant was later determined to have been in an alcohol - related incident and was processed subsequently for administrative discharge due to being an Alcohol Rehabilitation Failure in accordance with Article 1910-152 of the Naval Military Personnel Manual (MILPERSMAN).
Nondecisional Issues - The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility for Department of Veterans Affairs ( VA ) educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits. The VA makes its own determination regarding eligibility for service 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 contends that he was not properly separated in that his arrest and civilian conviction was not an alcohol - related offense; as such, he warrants an upgrade in discharge characterization of service. 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 are classified as treatment failure s : any serious alcohol incident occurring subsequent to treatment that was precipitated by a previous incident (f or 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 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 a primary contributing factor. Furthermore, the 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 self-referred himself for alcohol treatment. After screening, he was evaluated by Substance Abuse Rehabilitation Program (SARP) personnel who determined that the Applicant was alcohol depend e nt with physiological dependence . The Applicant was assigned to participate in an Intensive Outpatient Care program for 35 days . The Applicant successfully completed this program of treatment and was assigned to a written aftercare program - signed by the Applicant and witnessed - which included his abstinence from alcohol, a requirement for follow-up counseling and participation in support groups, and a specific a dvisement regarding separation for failure to comply or for any involvement in an alcohol - related incident. On 07 June 200 9 , civilian authorities arrested the Applicant on domestic battery charges. The arresting officer’s sworn statement included that when he made contact with the Applicant at the scene, he was emitting a strong odor of alcohol from his mouth. Given the statement of the arresting officer, the SARP determined that the incident did involve alcohol, was alcohol related, and did violate the terms of the A pplicant ’ s aftercare program , OPNAVINST 5350.4D , and Article 1910-152 of the MILPERSMAN. Based on this alcohol-related incident, the command and the medical officers determined the Applicant to be an Alcohol Rehabilitation Treatment F ailure ; as such, processing for administrat ive separation was mandatory.

On 24 June 200 9 , the Applicant was notified of administrative processing for discharge in accordance with Article 1910-152 of the MILPERSMAN. The Applicant was notified that the least favorable characterization of service warranted was General (Under Honorable Conditions) and that the command was recommending that the Applicant receive a General (Under Honorable Conditions) characterization of service at discharge, if approved. The Applicant elected to waive his right to consult with qualified legal counsel and chose not to submit a statement for consideration by the Separation Authority. The Applicant did not wa rrant an administrative discharge board. Upon review of the discharge recommendation, the Separation Authority found that the evidence of record supported discharge, that retention was not warranted, and a General (Under Honorable Conditions) characterization of service at discharge was appropriate and was warranted. The Applicant was discharged subsequently with a General (Under Honorable Conditions) characterization of service on 15 July 2009 . Based on a detailed review of the Applicant’s discharge package and supporting documentation, coupled with a review of the medical records and alcohol treatment program documentation, the NDRB determined that the Applicant was an Alcohol Rehabilitation Treatment Failure , that processing for separation was mandatory, and that the discharge was proper as issued . Relief denied.

: (Decisional) ( ) . The Applicant contends that his discharge was overly harsh in that he was at the end of his enlistment and that the separation resulted in a forfeiture of his benefits. The Applicant completed an intensive outpatient treatment program after being diagnosed as alcohol depend e nt. Upon completion of the treatment program , the Applicant was assigned to an aftercare program and was counseled in writing regarding mandatory processing for separation for violation of his aftercare program or any future alcohol - related incidents. In accordance with the MILPERSMAN ( A rticle 1910-152), t he characterization of separation should be General (Under Honorable Conditions), unless an Entry Level Separation or Honorable characterization is warranted. An Honorable characterization of service 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 characterization of the A pplicant’s service at discharge. The NDRB’s vote was unanimous that relief is not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, and discharge process, the NDRB determined that 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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