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NAVY | DRB | 2010_Navy | ND1001337
Original file (ND1001337.rtf) Auto-classification: Denied

ex-YN2, USN
Current Discharge and Applicant’s Request
Application Received: 20100504
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)        20011030 - 20020130     Active:   20020131 - 20071206 HON

Period of Service Under Review:
Date of Current Enlistment: 20071207     Age at Enlistment:
Period of E nlistment : Years 15 MONTHS Extension
Date of Discharge: 20090304      Highest Rank/Rate: YN2
Length of Service : Y ear M onth s 25 D a ys
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 4.5 ( 2 )      Behavior: 5.0 ( 2 )        OTA: 4.36

Awards and Decorations ( per DD 214):      GWOTSM E nlisted Submarine Warfare Specialist

Periods of UA /C ONF :     NJP :     S CM : NONE       SPCM:    C C :     

Retention Warning Counseling : NFIR

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

 Decisional issues: (1) The Applicant contends his discharge action was improper due to evaluation and treatment by the U.S. Air Force, vice a Navy Medical Treatment Facility. (2) The Applicant contends that his discharge action was improper due to the existence of prior enlistment information in his record that was considered during his current enlistment discharge action. (3) The Applicant contends that his job - related performance was not considered properly in his discharge action. (4) The Applicant contends that his discharge action was inequitable as others with misconduct or personal issues received less harsh outcomes than his.

Decision

Date: 20 1 1 0708            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 identified numerous issues for the NDRB’s consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to discharge, and the discharge process, to ensure the discharge met the pertinent stan dards of equity and propriety.

The Applicant’s record of service reflects entry into the military service at age 18 under a 6 year enlistment contract , which he completed , with an H onorable characterization of service; the Applicant executed an immediate re-enlistment for 2 years and subsequently extended that enlistment for 15 months of obligated service time to execute permanent change of station orders. In regards to the current period of enlistment, the Applicant completed 1 year and 2 months of his obligation. Throughout this period, he received no NAVPERS 1070/613 (page 13) retention-counseling warnings and his service record reflected no judicial or non-j udicial punishment s for violation s of the UCMJ . However, the Applicant’s record of service during this enlistment period reflects an incident of domestic violence involving alcohol that resulted in a command - directed referral to the nearest Medical Treatment Facility (MTF) for alcohol treatment evaluation.

The Applicant’s record of service does reflect attendance at a 2 5 -day period of intensive outpatient treatment for alcohol dependence (04 April - 29 April 2005) and, upon his successful completion of the treatment program, assignment 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 volved in an alcohol - related incident (24 Nov 2008), was evaluated by a n MTF drug and alcohol treatment facility (11 Dec 2008), and subsequently was processed for administrative discharge pursuant to Article 1910-152 of the Naval Military Personnel Manual (MILPERSMAN) for Alcohol Rehabilitation Treatment Failure.

Due to the nature of the alcohol - related incident, coupled with the Applicant’s total record of service, the command determined that retention in his case was not warranted and processed the Applicant for administrative separation. The NDRB was unable to review the Applicant ’s election of rights due to the lack of a complete discharge package in his service record; as such, the presumption of regularity of governmental affairs was applied by the NDRB in this case. The Applicant’s DD Form 214 documents a separation code of “HPD” – indicating involuntary separation, administrative discharge board warranted, but waived. Upon review of the administrative separation package, t he Separation Authority determined that separation was warranted pursuant to Article 1910-152 (Alcohol Treatment Failure) and further directed that the Applicant receive a General (Under Honorable Conditions) characterization of service and be assigned a re - entry code of RE-4 (not recommended for reenlistment). Subsequently, t he Applicant was discharged from the Naval Service on 09 March 2004 .


(Decisional Issues) ( ) .

Propriety - In accordance with Article 1910-152 of the MILPERSMAN, commands shall process for administrative separation all members considered to be alcohol 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 me mber 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, 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.

T he Applicant self-referred for alcohol treatment in April 2005 . After screening, he was evaluated by Substance Abuse Rehabilitation Program personnel who determined that the Applicant was alcohol abusive . The Applicant was assigned to participate in an Intensive Outpatient Care program ( L evel II treatment) for 2 5 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 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 plan , having incurred a subsequent alcohol - related incident , and was determined also to be alcohol depend e nt by a n appropriately licensed alcohol treatment counselor and a medical officer . After a detailed review of the facts, circumstances, and issues unique to this discharge action, the NDRB determined that the Applicant was discharged properly. As such, relief based on matters of propriety is not warranted .

The Applicant contends his discharge action was improper due to evaluation and treatment by the U.S. Air Force, vice a U.S. Navy Medical Treatment Facility . In accordance with SECNAVINST 5350.4D and the MILPERSMAN, treatment shall include all Medical Treatment Facilit y or Alcohol Treatment Facilit y directed early intervention services provided within the Continuum of Care. Moreover, the Department of the Navy Drug and Alcohol Abuse Prevention Program is directed by Department of Defense Directive 1010.4 ( Drug and Alcohol Abuse by DoD Personnel ) , which establishes standardized programs and requirements across all the military services and departments. The Applicant was assigned to remote duty (recruiting) and the available M ilitary T reatment F acility for that region for active duty personal was Malmstrom Air F orce Base. Accordingly, the NDRB found this issue to be without merit. Relief not warranted.

T he Applicant contends that his discharge action was improper due to the existence of prior enlistment information in his record that was considered during his current enlistment discharge action. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that prior enlistment information was used improperly in the separation process. In accordance with Article 1910-214 of the MILPERSMAN, a dverse matter from a prior enlistment ( such as records of nonjudicial punishment and convictions by court-martial ) may be considered when such records would have a direct value in determining whether separation is appropriate ; however, a dverse matter from a prior enlistment may not be considered in recommending or authorizing characterization of service. As such, the command was authorized to consider the Applicant’s record of prior misconduct and other documented information in his service record when determining whether to recommend retention or separat ion ; moreover, the Applicant was awarded a General (Under Honorable Conditions) characterization of his service, not an Under Other Than Honorable Conditions characterization . Accordingly, the NDRB found this issue to lack any merit and determined that relief was not warranted based on this issue.

- The Applicant contends that his job - related performance was not considered properly in his discharge action and that his discharge action was inequitable as others with misconduct or personal issues received less harsh outcomes than his. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Commanders are directed to determine separation or retention based on the rehabilitative potential of each individual on a case-by case basis. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.

In accordance with the MILPERSMAN ( A rticle 1910-152), the characterization of separation for Alcohol Rehabilitation Failure should be General (Under Honorable Conditions), unless an Entry Level Separation or Honorable characterization is warranted per MILPERSMAN 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 during the enlistment period in question, the NDRB determined that the 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 .

Based on a detailed review of the Applicant’s service record 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 Program fa ilure ; that processing for separation was mandatory ; that separation vice retention was warranted; and that the discharge was proper and equitable 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 issues of propriety or equity , are warranted. Relief denied.

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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