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NAVY | DRB | 2010_Navy | ND1002302
Original file (ND1002302.rtf) Auto-classification: Denied

ex-AOAN, USN
Current Discharge and Applicant’s Request
Application Received: 20100923
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)        20030228 - 20030324     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030325     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070326      Highest Rank/Rate: A OAN
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 71
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 1.7 ( 3 )        OTA: 2.78

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

Periods of UA /C ONF : UA : 20050203 - 20050208 (5 days)             CONF:

NJP :

- 20060302 :      Article (Drunken operation of a motor vehicle) , 20060228
         Awarded: (to E-2) Suspended:

S CM :    SPCM:    CC:

CC ARREST:

- 20070207 : Arrest and c harge d with DUI , Coronado CA

Retention Warning Counseling :

- 20060308 :       2 Mar 2006 NJP f or violation of UCMJ Article 111(D runken operation of a motor vehicle ) .

Administrative Corrections to the Applicant’s DD 214

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

         “ 05FEB03 TO 05FEB08 ”

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.        Applicant contends his discharge was inequitable based on his record of service.

Decision

Date: 20 1 2 01 12             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 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 Applicant identif ied one decisional issue for the Board ’s consideration . T he Board co nducted a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and proprie ty. The Applicant’s record of service included a five - da y period of unauthorized absence (UA) from 3- 8 Feb 2005, one NAVPERS 1070/613 (Page 13) retention warning for DUI (8 Mar 2006) , and one for o f the Uniform Code of Military Justice (UCMJ): Article 111 ( Drunken operation of a vehicle , 28 Feb 2006 ) . The record also revealed the Applicant had an enlistment waiver for a pre-service theft incident, and a history of law enforcement arrests for possession of marijuana and possession of alcohol (3 times) as a minor , prior to entering the Navy. Subsequent to his Feb 2006 arrest for DUI, and after drug and alcohol abuse evaluation and screening, the Applicant was enrolled in intensive outpatient substance abuse treatment (Level II),which he completed on or about 6 Jul 2006. While enrolled in substance abuse rehabilitation treatment program aftercare, the Applicant was stopped for speeding on his way to work on the morning of 7 Feb 2007 (Coronado , CA). The law enforcement officer suspected the Applicant was intoxicated and apprehended him for further blood alcohol content testing. On 12 Feb 2007, after receiving confirmation of the Applicant’s blood alcohol level and amplifying information from the Applicant, the Substance Abuse Rehabilitation Program (SARP) sent a letter to the Applicant’s command stating the Applicant may be considered a rehabilitation treatment program failure. Based on the repeated alcohol related offense(s) committed by the Applicant and the commanding officer’s determination of alcohol rehabilitation treatment failure , the command administratively processed him for separation , which is mandatory per the Naval Military Personnel Manual . When notified of administrative separation processing (for commission of a serious offense and alcohol rehabilitation failure) using the notification procedure on 10 Mar 2007 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. The Applicant was separated from the Navy on 26 Mar 2007 with a General (Under Honorable Conditions ) discharge due to Alcohol Rehabilitation Failure.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable based on his record of service. Despite a service member’s prior record of service, certain serious offenses warrant separation from the N aval S er vice in order to maintain good order and discipline ; violation of Article 11 1 meets this standard . The Applicant signed Command policy letters regarding alcohol abuse and DUI on 9 Oct 2003. He confirmed his complete understanding and acknowledged the consequences of violation. Additionally, after his first DUI arrest in Feb 2006, he completed Level II substance abuse rehabilitation treatment (intensive outpatient) , which involved substantial counseling and therapy. He received his second DUI just 7 months after completion of Level II treatment. While he may feel his in-service performance warranted retention , the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. 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 a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. The Applicant’s conduct reflects the Applicant’s willful and repeated failure to adhere to the requirements of conduct expected of all members of the Naval S ervice , especially considering his experience and length of service , and f alls short of w hat is required for an upgrade. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and the administrative separation 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 for additional information.


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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