ex-ATAA, USN

Current Discharge and Applicant’s Request

        
Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:      UNCHARACTERIZED
        
Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20120507 - 20121021     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20121022    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20141112     Highest Rank/Rate: ATAN
Length of Service: Year(s) Month(s) 22 Day(s)
Education Level:        AFQT: 92
Evaluation Marks:        Performance: 2.8 (4)     Behavior: 2.3 (4)       OTA: 2.58

Awards and Decorations (per DD 214):    

Periods of UA/CONF:

NJP:

- 20140401:      Article
         Article
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 20140401:      For your violations of the UCMJ: Article 86(x3), Article 91, and Article 92 as evidenced by the CO’s NJP.










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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 29, 23 November 2009 until Present, Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE OR MULTIPLE DRIVING UNDER THE INFLUENCE (DUI) / DRIVING WHILE INTOXICATED (DWIs).

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.       The Applicant contends his discharge was in retaliation for reporting an assault upon another servicemember.
2.       The Applicant contends his command failed to properly follow the OPNAVINST 5350.4D.
3.       The Applicant contends his character of service does not reflect his earlier Honorable service.
4.       The Applicant contends his post-service rehabilitation treatment warrants an upgrade.

Decision

Date: 20150604            Location: Washington D.C.        Representation:

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave) and Article 92 (Failure to obey order or regulation). Additionally, the Applicant had a pre-service waiver due to being found guilty of driving under the influence and he also had a pre-service drug waiver for using marijuana prior to entering the Navy. The medical record also describes that the Applicant had a pre-service history of amphetamine use which he failed to properly disclose during his enlistment process. Based on the Applicant’s alcohol rehabilitation failure, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.

: (Decisional) () . The Applicant contends his discharge was in retaliation for reporting an assault upon another servicemember. The NDRB is not an investigative body, and allegations of retaliation should be made to the Naval Inspector General’s Office. However, in regards to reviewing discharges, the Board 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 NDRB determined that the Applicant’s statements and the evidence provided do not overcome the presumption of regularity in this case. More importantly, the Applicant failed to demonstrate that he should not be held accountable for his own misconduct or rehabilitation failure. Further, if the Applicant felt there were mitigating circumstances, it was his obligation to contest the charges at the time they were made. During a trial by courts-martial, he would have had the opportunity to mount a defense against the charges. Instead, the record indicates that he waived his right to trial and accepted NJP. The NDRB discerned no impropriety or inequity and the Applicant’s separation for his alcohol rehabilitation was appropriate. Based on the Applicant’s record of service to include an NJP and retention warning, the NDRB determined the awarded characterization of service was warranted. Relief denied.

: (Decisional) () . The Applicant contends his command failed to properly follow the OPNAVINST 5350.4D. Unfortunately, the NDRB did not have a copy of the Applicant’s administrative separation package. However, 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. Per OPNAVINST 5350.4D, commanders are instructed to initiate administrative separation processing of individuals who are identified as treatment failures. Per Navy Military Personnel Manual, (NAVPERS 15560C), Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE, a treatment failure includes any member who has incurred an alcohol related incident, has been a command referral, or has self-referred, and has been screened by medical personnel and found to be in need of treatment, and who commences but subsequently fails to complete any prescribed treatment at Level I or above, or incurs an alcohol incident. Conduct, which amounts to a refusal, failure to complete, or non-amenability shall be determined by the medical officer or licensed independent practitioner. Conduct which amounts to an alcohol incident shall be determined by the member's commanding officer. The Applicant not only failed to prove his contention, but the evidence in the record is to the contrary. The medical records clearly indicate that the Applicant was determined to be a treatment failure by competent authority. Additionally, the Applicant accepted NJP and was found guilty of violating Articles 86 and 92. Violation of Article 92 is considered a serious offense and could warrant administrative separation on that basis alone (Commission of a Serious Offense). The NDRB discerned no impropriety or inequity and the Applicant’s separation for his alcohol rehabilitation failure was appropriate. Relief denied.

: (Decisional) () . The Applicant contends his character of service does not reflect his earlier Honorable service. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.

4: (Decisional) () . The Applicant contends his post-service rehabilitation treatment warrants an upgrade. 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 provided evidence that in the short time he has been discharged, he was identified as chronically homeless and completed an 88 day substance abuse treatment program. 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. The 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 summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain ALCOHOL REHABILITATION FAILURE. 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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