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NAVY | DRB | 2010_Navy | ND1001176
Original file (ND1001176.rtf) Auto-classification: Denied

ex-EO3, USN
Current Discharge and Applicant’s Request
Application Received: 20100407
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)        20000630 - 20001031     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20001101     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040706      Highest Rank/Rate: EO3
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 3.3 ( 3 )        OTA: 3.37

Awards and Decorations ( per DD 214):      Rifle

Periods of UA /C ONF :

NJP :     S CM :    SPCM:

C C :

- 20031001 :       Offense Conviction : D riving Under the Influence of Alcohol (D UI ) in violation of California State law.
         Sentence : 48 hours jail; $1695.00 fine; 90 days license restriction; 90 day DUI 1 st offenders program; and 36 months driver’s license probation.

Retention Warning Counseling :

- 20031024 :       For civilian conviction for driving while having a 0.08% or higher blood alcohol content, from the Ventur a County Superior Court, Ventur a , California.

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:    
                                    (Death Certificates)
 Additional Statements :                     
         From Applicant:            From /To Representation:            From /To Congress m ember :        



Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION.

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

          Decisional issues: The Applicant contends that his discharge action for Alcohol Rehabilitation Failure was unjust in that he was not provided treatment or a continuum of proper care until after his second incident for which he was quickly discharged. Additionally, the Applicant contends that his discharge was inequitable because of personal family problems and emotional issues related to the death of his f ather and a unt within a month’s time and were mitigating factors that should have been considered in his separation process.

Decision

Date: 20 1 1 062 8            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. T he NDRB completed a thorough review of the circumstances that led to discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning for a driving under the influence of alcohol conviction in Ventura Superior County Court, California . T he Applicant’s service record document s a civilian conviction for driving under the influence of alcohol with a Blood Alcohol Content greater than 0.08% on 01 October 2003 . Multiple alcohol - related incidents led to the Applicant’s separation as a n alcohol treatment failure ; he was notified that he was being processed for discharge in accordance with Article 1910-152 of the Naval Military Personnel Manual (MILPERSMAN) - A lcohol Rehabilitation Treatment F ailure. The Applicant was notified of the proposed recommendation for separation on 07 April 2004 ; he acknowledged - in writing - his understanding of the proposed basis for separation and that the least favorable characterization of service possible was General (Under Honorable Conditions) on 13 April 2004 . The Applicant elected to exercise his right to consult with qualified legal counsel and opted to submit written matters in rebuttal to the Separation Authority. On 06 July 2004 , the Separation Authority determined that separation was warranted pursuant to Article 1910-152 and directed that the Applicant receive a General (Under Honorable Conditions) characterization of service at discharge and a re - entry code of RE-4 (not recommended for reenlistment). The Applicant was discharged on 06 July 2004 .

: (Decisional) ( ) . The Applicant contends that his discharge action for Alcohol Rehabilitation Failure was unjust in that he was not provided treatment or a continuum of proper care until after his second incident for which he was quickly discharged. Additionally, the Applicant contends that his discharge was inequitable because of personal family problems and emotional issues related to the death of his f ather and a unt within a month’s time. The Applicant provided supporting documentation verifying the death of his father and aunt.
Propriety - In accordance with Article 1910-152 of the M ILPERSMAN, commands shall process for administrative separation all members considered treatment failures - unless a written waiver is obtained from the Commander, Navy Personnel Command . In accordance with Article 1910-152, the following are classified as treatment failures: 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 or Alcohol Treatment Facility 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. In accordance with Article 1910-152, an alcohol incident is any 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 Honorable, unless an Entry Level Separation or General (Under Honorable conditions) characterization of service is warranted.

The Applicant was convicted of driving under the influence of alcohol – an alcohol - related incident. After screening, he was evaluated by Substance Abuse Rehabilitation Program personnel who determined that the Applicant should attend an alcohol I mpact class and be followed with a monitored treatment program for a period of one year. The Applicant attended and 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 advisement regarding separation for failure to comply or for any involvement in an alcohol - related incident. Based on a review of the Applicant’s official service records, he violated his aftercare program and was involved in an alcohol - related incident on 01 April 2004 . The Applicant failed to be at his appointed place of duty; upon being located, he smelled of alcohol and subsequently failed a command - directed breathalyzer test. Because of his intoxicated state, the Applicant was unable to perform his duties as the duty watch driver. The command determined that this was a violation of A rticle 134 of the UCMJ: Drunkenness – incapacitating oneself for performance of duties through prior indulgence in intoxicating liquor or drugs. Due to a second alcohol - related incident, the command processed the Applicant for separation for failing Alcohol Rehabilitation Treatment. Based on a detailed review of the Applicant’s discharge package and supporting documentation, coupled with a review of the alcohol treatment program documentation and the Page 13 retention-counseling warning , the NDRB determined that the Applicant was an Alcohol Rehabilitation Treatment program failure, that processing for separation was mandatory, and that the discharge was proper as issued. As such, no change in the narrative reason for discharge or the characterization of the A pplicant’s service at discharge based on propriety is warranted. Relief denied.

- T here is no evidence in the record, nor did the Applicant provide any evidence, to indicate that t he Applicant 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. Upon completion of the Impact alcohol treatment program, the Applicant was assigned to an aftercare program . He was counseled, in writing, regarding mandatory processing for separation for violation of his aftercare program or any future alcohol - related incident. Additionally, the Applicant received a NAVPERS 1070/613 retention-counseling warning, advising the A pplicant that any future alcohol - related incidents could lead to administrative separation o r judicial processing. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.
In accordance with the MILPERSMAN ( A rticle 1910-152), the characterization of separation should be Honorable , unless a n Entry Level Separation or Gener al (Under Honorable Conditions) characterization is warranted per A rticle 1910-304. 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 his service was honest and faithful, but that significant negative aspects of the member’s conduct or performance of duty did outweigh the positive aspects of his service record. The NDRB found the characterization of the Applicant ’ s discharge was proper, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB discerned no impropriety or inequity in the characterization of the A pplicant’s service at discharge; the NDRB further determined that an upgrade would not be appropriate and that relief was not warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, 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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