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NAVY | DRB | 2011_Navy | ND1100123
Original file (ND1100123.rtf) Auto-classification: Denied

ex-MM3, USN

Current Discharge and Applicant’s Request
Application Received: 20101019
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)        20010730 - 20011211     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011212     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041102      Highest Rank/Rate: MM3
Length of Service : Y ear s M onth s 21 D a ys
Education Level:        AFQT: 84
Evaluation M arks:         Performance: 3.0 ( 5 )      Behavior: 2.6 ( 5 )        OTA: 2.95

Awards and Decorations ( per DD 214):      NDSM NAVY”E ”

Periods of UA /C ONF :     SCM: NONE        SPCM: NONE       CC: NONE

NJP : 2
- 20020 206 :      Article 128 (Assault, unlawfully strike another sailor , 20020115 )
         Awarded: FOP Suspended: FOP (suspend 30 days)

- 20020 9 12 :      Article 92 (Failure to obey order or regulation, underage drinking , 20020727 )
         Awarded: RIR (to E-3) FOP RESTR (70 days) ORAL ADMONI T ION Suspended:

Retention Warning Counseling : 2
- 20020206:      For assault (Art 128)
- 20020912 :       For underage drinking (Art 92)

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), 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

 1.        Applicant seeks a discharge upgrade to obtain v eterans benefits.
2.       Applicant seeks a discharge upgrade to re-enlist in the U.S. Armed Forces.
3.       Applicant contends his discharge was improper/inequitable , because he was forced to go to alcohol treatment .
4.       Post-service conduct.
Decision

Date: 20 1 2 0112             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 Applicant identif ied one decisional issue for the Board ’s consideration . T he Board complete d 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 propriety. The Applicant’s record of service included two NAVP ERS 1070/613 (Page 13) retention warnings for assault and underage drinking and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation , underage drinking, 27 Jul 2002, Naval Nuclear Power Training Course ) and Article 128 (Assault, unlawfully strike another sailor , 15 Jan 2002, Recruit Training Center ) . During 2004, t he Applicant was diagnosed with an alcohol abuse problem and referred for IMPACT (Level 0.5) substance abuse rehabilitation program (SARP) treatment. On 3 Aug 2004 , the Applicant was released from treatment due to program noncompliance and was subsequently determined to be an alcohol rehabilitation treatment failure by his Commanding Officer. Based on his noncompliance and determination as a SARP treatment failure, the Applicant’s command processed him for administrative separation per the Naval Military Personnel Manual (MILPERSMAN). When notified of administrative separation processing using the notification procedure on 12 Oct 2004 , the Applicant waived his 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 2 Nov 2004 with a General (Under Honorable Conditions) discharge due to Alcohol Rehabilitation Failure.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veterans 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 a discharge upgrade to re-enlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable , because he was forced to go to alcohol treatment. Th e Applicant states that he was improperly forced to attend alcohol rehabilitation treatment , a nd therefore his noncompliance did not warrant separation. Despite a service member’s prior record of se rvice, certain conduct, even though isolate d, warrants mandatory administrative separation processing (per the MILPERSMAN ) in orde r to maintain good order and discipline ; failure to comply with substance abuse and/or dependency treatment meets this standard . On 23 Aug 2001, the Applicant signed the USN Nuclear Field statement of understanding , which included the following: “ Personnel in the nuclear field program must continually demonstrate by their

professional performance, academic achievement , and military behavior that they possess the ability, maturity, personal reliability, and integrity to complete the demanding training program and serve successfully as nuclear propulsion plant operators in the fleet. Consequently, any event which cast serious doubt on the member’s ability to continually satisfy these high standards of conduct may result in that member’s disenrollment from the nuclear field program . ” Additionally, the Applicant received PREVENT substance abuse prevention training on 21 Jun 2002. He was fully aware there is a low tolerance policy for alcohol abuse , and he understood the consequences. While he may feel his command improperly referred him, the record clearly reflects his willful misconduct ( that included assault, underage drinking, and purposeful failure to complete Level 0.5 substance abuse treatment) 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 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 Sailor’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, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all members of the Naval Service, especially considering his grade , length of service , and job specialty field , and f alls short of w hat is required for an upgrade. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant submitted a resume and proof of certification as an emergency vehicle technician. The NDRB considers 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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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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