ex-PH2, USN
ND07-00001

Current Discharge and Applicant’s Request:

Application Received:  				20060926
	Characterization of Service:		
	Reason for Discharge:			ALCOHOL REHABILITATION FAILURE
	Discharge Authority:			MILPERSMAN 1910-152
	Duty Assignment/Command at Discharge:	fleet imaging center pacific atsugi, japan

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1.  Employment

Decision:

By a vote of  the Characterization shall   .	
By a vote of  the Reason for Discharge shall  ALCOHOL REHABILITATION FAILURE.

Date of Decision:					20070823
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding.  

Decisional Issues:

For the information of the Applicant:  OPNAVINST 5350.4C directs that commands shall process for administrative separation all members considered to be alcohol treatment failures.  A treatment failure is defined as any serious alcohol incident occurring at any time during his or her career subsequent to treatment.  Twice the U. S. Navy allowed the Applicant to attend alcohol rehabilitation treatment.  The Applicant’s service was marred by a two incidents of endangering others by driving under the influence of alcohol, as well as unauthorized absences, bad debit issues, and making false official statements.  Violations of UCMJ Articles 107 (false official statements), 111 (drunken driving) and 134 (drunkenness) carry a maximum penalty of a dishonorable discharge and up to 5 years of imprisonment for each offense when adjudicated by a court martial.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  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 and falls far short of that required for an upgrade to his characterization of service.  

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19920103 - 19920916  
Active:   					19920917 - 19970724   

Period of Service Under Review:
Date of Enlistment:  				19970725
Years Contracted:  				; (CO’s letter states EAOS 20031124) 
Date of Discharge:				20030618
Length of Service
	Active:					5 Yrs 10 Mths 24 Dys (10 Yrs 9 Mths total)
	Time Lost During This Period:		  
Education Level:  				
Age at this Enlistment:  				
AFQT:  						62
Highest Rate/Rank:				PH2

Performance Evaluation Averages (number of marks):
						Performance: 3.4  Behavior: 2.4  OTA: 3.17 (9)

Awards and Decorations (as listed on the DD Form 214):  GOOD CONDUCT MEDAL(2); NATIONAL DEFENSE SERVICE MEDAL (2) SW ASIA SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON(4); MERITORIOUS UNIT COMMENDATION; FLAG LETTER OF COMMENDATION; NAVY "E" RIBBON; OVERSEAS SERVICE RIBBON (4); NAVY AND MARINE CORPS ACHIEVEMENT MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

19970725:	Applicant reenlisted.

19980624:	Substance Screening Report:
	Applicant referred for an ETOH screening by his command due to an ETOH incident on 19980615 of which he was charged for unfitness for duty and operating a vehicle under the influence of ETOH.  (BAC .1% approximately 10 hours after last drink).
		
19980702:	NJP for violations of UCMJ:
	Article 134: Drunkenness - incapacitation for the performance of duties through prior wrongful indulgence in intoxicating liquor.
	Article 86:  Absence without leave.
	Award:  Reduction to E-4.  Reduction suspended for 6 months.
	
19980710:	Retention Warning:  Advised of deficiency, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19980813:	Alcohol Treatment Summary (Level II), US Naval Hospital Yokosuka Japan:
	Diagnosis:  Alcohol abuse.
	Applicant successfully completed treatment.
	Prognosis:  Guarded.
	
19990125:	NJP for violations of UCMJ:
	Article 134: Dishonorably failing to pay debt in November and December 1998.
	Article 107: False official statement on 19981229.
	Award:  Restriction and extra duty for 14 days, reduction to PH3.
	
19990827:	Alcohol Treatment Summary (Level II), US Naval Hospital Yokosuka Japan:
	Applicant successfully completed treatment.
	Prognosis:  Guarded.

20010718:	Report of medical history:  Applicant with history of ETOH abuse received Level II in 97, not successful, diagnosed ETOH dependence July 98 completed Level III in August as well as one year of aftercare.  States complete abstinence since.  Has been attending AA meetings (despite reservations about religious nature) approximately once per week.  Does not know which step he is on.  
	Assessment:  Follow up ETOH dependence - in remission (complete/partial?)
	1) Document AA attendance 3x/week.

20011119:	Report of medical history: 
	Physicians Summary, “History of ETOH dependency S/P Level III ’95.  Occasional drinking since, no disciplinary problems since.  Infrequent AA attendance.”
		
20020318:	Applicant arrested and charged with inflicting bodily injury through negligent operation of a motor vehicle, (DUI, Blood Alcohol level 0.35 MG / Liter). 

20030310:	Civil Conviction:  Yokohama District Court, Yokohama City, Kanagawa Prefecture, Japan for violation of Driving Under the Influence of alcohol and professional negligence.  (Japanese attorney and interpreter provided by U. S. Navy). 
	Sentence:  Confinement for 8 months.  Suspended for 3 years.

20030418:	NJP for violations of UCMJ:
	Article 134: Drunkenness
	Article 86:  Unauthorized absence 

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20030423
Reason for Discharge				 - 
						 - 
						 
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		20030428
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			
Administrative Board			

Separation Authority (date):	COMMANDING OFFICER, U.S. AIR FACILITY ATSUGI (20030505)
	Reason for discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20030618

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				1
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
25 January 2004, Article 1910-152, 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, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violations of the UCMJ, Article 107 (false official statements) and 134 (dishonorably fail to pay).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  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