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

FOR OFFICIAL USE ONLY

 ex-SM2, USN
Docket No. ND05-00473

Applicant’s Request

The application for discharge review was received on 20050126.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant listed civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/ALCOHOL REHABILITATION FAILURE, authority: MILPERSMAN, Article 1910-152 (formerly Article 3630550).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s civilian counsel:

“1. The applicant was not properly processed for discharge having received notice of retention in the Navy just 33 days prior to discharge.”

“2.  Assuming arguendo that the applicant was properly processed for discharge, the applicable character of discharge should have been Honorable.”

“3.  The positive aspects of the applicant’s overall service outweigh any minor negative factor.”

“4.  The significant post-service accomplishments of the applicant’s service in Iraq, as a US contract employee under wartime conditions, merits a fully Honorable discharge.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Legal Brief (11 pages)
History of Assignment Documents (2 pages)
Colorado Bureau of Investigation Criminal Record Letter, dated August 13, 2004
Letter of Recommendation from LT C_S. I_, USN dated October 31, 2004
Reference Letter from S_ S_, dated September 17, 2004 (2 pages)
Reference Letter from A_ H_, dated October 24, 2004 (2 pages)
Reference Letter from E_ M_, dated October 26, 2004 (2 pages)
Reference Letter from B_ M. W_, October 3, 2004
Oath of Office from B_ W_.        

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	921219 - 930823	COG
Active:   USN 			930824 - 970410	HON
Active:   USN 			970411 - 010405	HON

Period of Service Under Review:

Date of Enlistment:  010406		Date of Discharge:  030709

Length of Service (years, months, days):

	Active:    02  03  03
	Inactive:  None

Age at Entry:  25			Years Contracted:  6 

Education Level:  12			AFQT:  53

Highest Rate:  SM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.25 (4)		Behavior:  2.75 (4)		OTA:  3.60

Military Decorations:  Enlisted Surface Warfare Specialist, NSW Breast Insignia (Trident), Navy and Marine Corp Parachutist Badge (Gold Wing).

Unit/Campaign/Service Awards:  Navy Good Conduct Medal, Armed Forces Expeditionary Medal, National Defense Service Medal (2), Navy Rifle Expert Medal, Navy Pistol Expert Medal, Letter of Commendation (Flag).

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/ ALCOHOL REHABILITATION FAILURE, authority:  MILPERSMAN, Article 1910-152 (formerly Article 3630550).

Chronological Listing of Significant Service Events:

010406:	Reenlisted at NSWU 1 GUAM for 6 years.

011005:	Retention Warning:  Advised of deficiency (Refusal to submit to law enforcement administered blood alcohol testing and in subsequent screening, the Counseling and Assistance Center, USNH Guam, has determined that the Applicant alcohol dependent.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030606:	Retention Warning:  Advised of deficiency (a. Guilty of Art 107, making a False Official Statement, b. Guilty of Art 92, Failure to Obey a Lawful General Order, c. In October 01, the Counseling and Assistance Center, USNH Guam determined that the Applicant was alcohol dependent, ordered him to complete treatment which he failed to do.)  Applicant ordered to complete ASAM Level 2 intensive outpatient treatment for alcohol dependence, have a physical exam within 30 days of attending treatment, and attend 3 AA meetings per week until treatment is complete, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030613:	Pre-treatment Medical Assessment (SARP) indicates previous history ETOH Dependence; completed Level II.

030709:	DD-214:  Applicant discharged with a general (under honorable conditions) by reason of alcohol abuse rehabilitation failure, authority: MILPERSMAN 1910-152.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030709 with a general (under honorable conditions) due to alcohol rehabilitation failure (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The Applicant, through counsel, contends that he was not properly processed for discharge because he received a notice of retention in the Navy just 33 days prior to discharge.  A Page 13 counseling/retention warning is legally binding on the Navy.  A servicemember cannot be processed for separation after the issuance of such a warning unless the underlying misconduct is an offense that requires mandatory administrative processing (e.g. drug related offense or sexual misconduct) or the Applicant violates the retention warning through continued misconduct.  The evidence of record indicates that the Applicant received a Page 13 counseling/retention warning on 20030606.  On 20030709 the Applicant was discharged by reason of alcohol rehabilitation failure with a general (under honorable conditions discharge).  The record contains no evidence of subsequent misconduct by the Applicant or any violation of the retention warning.  In such cases where there is a dearth of evidence, the Board generally applies the presumption of regularity in the conduct of governmental affairs.  This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  As such, the Board presumes that the Navy acted in accordance with applicable regulation and only initiated separation proceedings after the Applicant somehow violated his retention warning.  The Board draws support for this position from the Applicant’s DD-214.  The Applicant’s “SPD” code on the DD-214 is “HPD”.  This code indicates that the Applicant waived his administrative discharge board and did not contest his separation from the Navy.  The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence to support his issue.  The Applicant’s statements alone that he never violated his retention warning do not overcome the government’s presumption of regularity in this case.  Relief denied.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general (under honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for violations of UCMJ Article 92, failure to obey a lawful general order and Article 107, false official statement.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Board received and considered all of the Applicant’s submissions, including his Colorado Bureau of Investigation criminal records search, and superlative letters of recommendation.  After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide any additional documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A  Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-152 (formerly Article 3630550), SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the 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