ex-AOAN, USN
ND07-00059

Current Discharge and Applicant’s Request:

Application Received:  				20061012
	Characterization of Service:		
	Reason for Discharge:			ALCOHOL REHABILITATION FAILURE
	Discharge Authority:			MILPERSMAN 1950-152
	Duty Assignment/Command at Discharge:	NAWS CHINA LAKE CA 93555

Applicant’s Request:	
	Characterization change:			
	Narrative Reason change:	 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1.  Reenlist
						2.  The arrest which resulted in discharge was not an alcohol related 							incident, it was dismissed in civil court, did not consume alcohol and the 						fight was self defense

Decision:

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

Date of Decision:					20070830
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.  

Issue 2 ():  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.  The Applicant completed substance abuse treat at Point Loma in June of ’01, thereby becoming subject to the U. S. Navy’s rules regarding alcohol treatment failure.  In the Applicant’s letter to the Board he states that he had not consumed alcohol and was merely acting in self defense when arrested for fighting in public.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record nor has the Applicant produced any evidence to support the contention that his discharge was improper and he was in compliance with the terms of his alcohol treatment aftercare plan.  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 characterization of his service, reflects the Applicant’s failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade to his characterization of service.  

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19980826 - 19981122  
Active:  						 					

Period of Service Under Review:
Date of Enlistment:  				19981123
Years Contracted:  				; Extension:  
Date of Discharge:				20020220
Length of Service
	Active:					03 Yrs 02 Mths 28 Dys (does not exclude lost time)
	Time Lost During This Period:		7 Days UA:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						55
Highest Rate/Rank:				AOAA

Performance Evaluation Averages (number of marks):
						Performance: 4.0 Behavior: 2.0 OTA: 3.04 (2)

Awards and Decorations (as listed on the DD Form 214):  NONE

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

20000420:	Civil Conviction:  [Ridgecrest Municipal Court, Ridgecrest, CA] for Driving Under Influence.
	Sentence: Fine $1547.00, 5 years probation, 48 hours jail time first offenders DUI program. 

20000801:	NJP for violation of the UCMJ:
	Article 80:  Attempted damage of military property. 
	Award:  Forfeiture of $200.00 for 1 month (suspended for six months), extra duty for 30 days, reduction to E-2.

20010412:	Interview with Dr. C_, Applicant recently arrested for open container violation with a BAC of .06.

20010604:	Point Loma Substance Abuse Rehabilitation Department. 
	Diagnosis:	AXIS I:  Alcohol Abuse (DSM-IV 305.00).
		
20010615:	Applicant completed Outpatient Treatment Program for Alcohol Abuse at SARD Point Loma.

20020214:	Civil Conviction: Fighting in public.
	Sentence: Fine $100.00, 3 years probation [Extracted from Evaluation Report & Counseling Record Comments]. 

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge	NOT FOUND IN RECORD
	
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD 
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			 
Administrative Board			
GCMCA Review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	NOT FOUND IN RECORD
	Reason for discharge directed:		
	Characterization directed:			NOT FOUND IN RECORD
Date Applicant Discharged:			20020220

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				26
       
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)		 Armitage Airfield Flight Line Operator's License, Adult CPR Certificate, Medical Examinier's Certificate

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 
27 Mar 2000 until 21 Aug 2002, 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, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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