ex-EM3, USN
ND07-00316

Current Discharge and Applicant’s Request

Application Received:  20070118 	Characterization Received:  
Narrative Reason:  ALCOHOL REHABILITATION FAILURE Authority:  MILPERSMAN 1910-152

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Reenlistment Opportunities
			2. Misunderstanding of consequences of denying treatment
			3. Service record does not justify characterization of discharge

Decision

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

Date:  20071011  					Location:  Washington D.C. 	

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: ().  The Applicant implies that there was a misunderstanding of the consequences for refusing alcohol early intervention treatment education.  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 issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he misunderstood the consequences of refusing treatment.  Additionally, the Applicant, choosing not to seek counsel’s advice, acknowledged that the reason for discharge was Alcohol Abuse Rehabilitation Failure and acknowledged that the least favorable characterization could be general (under honorable conditions).  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.   

Issue 3: ().).  There is credible evidence in the record that the Applicant refused alcohol early intervention treatment education on three separate occasions.  Mandatory processing for separation is required for Sailor’s who willfully failed to complete medically prescribed treatment.  Separation under these conditions should be honorable unless general (under honorable conditions) is warranted per MILSPERMAN 1910-304.  MILSPERMAN 1910-304 states that a general (under honorable conditions) characterization is assigned when the quality of the member’s service has been honest, faithful; however, significant negative aspects of the member’s conduct outweighed the positive aspects of the member’s service.   The Applicant’s service was marred by three retention warnings and the award of nonjudicial punishment (NJP) on one occasion for violation of the Uniform Code of Military Justice (UCMJ) Article 92 (Failure to obey an order or regulation).  Violation of UCMJ Article 92 is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20010828 - 20020401  		Active:   
Period of Service Under Review:
Date of Enlistment: 20020402		Years Contracted:  ; Extension:  	Date of Discharge:  20050527
Length of Service:  03  Yrs  01  Mths  26  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  85	Highest Rank/Rate:  EM3
Evaluation marks (# of occasions):	Performance:  3.0(4)	Behavior:  3.0(4)	 OTA:  3.07 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY 'E' RIBBON, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20041217:	A Navy Substance Abuse Counselor at the Substance Abuse Rehabilitation Program and a Licensed Independent Practitioner on board USS Harry S. Truman (SVN 75) screening:  Applicant was an incident-referral and this is his only service-related substance abuse referral.  Applicant did not meet DSM-IV criteria for alcohol abuse or dependence.  Recommend IMPACT treatment; abstain from alcohol, follow-up with Command Religious Ministries Department for previous grief issues, and medical for non-alcohol related issues.

20041230:	Medical Record:  Reason for visit:  Referred by Command after being caught consuming alcohol while on Class "A" liberty in Manama, Bahrain on 20041215.
	Diagnosis:  Nicotine dependence.  
	Recommendation:  IMPACT

20041231:	NJP -- Viol UCMJ Art. 92 - Failure to obey an order or regulation (drinking alcohol while on Class "A" liberty risk.
	Awarded - FOP ($350.00) for (1 month); RIR (E-3); Restr for (30 days); Extra duties (30 days).  RIR suspended for 6 months.

20041231:	Retention Warning for Commanding Officer’s nonjudicial punishment held on 20041231 for violation of the Uniform Code of Military Justice, Article 92 - Failure to obey an order or regulation, by drinking while on Class “A” liberty risk.

20050101:	Drug and Alcohol Abuse Report:  Alcohol abuse, ashore off duty.  Licensed Independent Practitioner found applicant not dependent and recommended IMPACT.  Commanding Officer recommended retention and IMPACT.  Comments:  Applicant was noted as having alcohol on his breath while in a non-drinking liberty status.  BAC 0.142.  1st amendment 20050211.

20050307:	Retention Warning for alcohol consumption issues.  Applicant declined treatment.

20050330:	Retention Warning for alcohol consumption issues.  Applicant still refuses treatment.

20050523:	Retention Warning.  Applicant refuses treatment for third time.

Discharge Process

Date Notified:					20050524
Reason for Discharge:	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20050524
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):	COMMANDING OFFICER, USS HARRY S. TRUMAN (CVN 75) (20060616)
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	20050527

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Board for Correction of Naval Records example case

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 29 April 2005 until Present, 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 violation of the UCMJ, Article 92.

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 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:  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