ex-AE3, USN
ND07-00496

Current Discharge and Applicant’s Request

Application Received:  20070307	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Inconsistencies in documentation of alcohol dependence
			2.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20071115           Location:  Washington D.C	 Representation:  

Discussion

Issue 1  ().  Applicant contends that his discharge was inequitable due to inconsistencies in documentation of his alcohol dependency.  The service records that the Board reviewed indicate the following: 1) The Applicant went to NJP 20041014 for drunk and disorderly conduct in Guam and damage to government property, 2) completed Alcohol Impact 20041104, 3) was diagnosed as alcohol dependent by a psychologist 20050222, 4) went to NJP on 20050224 for drunk and disorderly conduct and assault on a commissioned officer, and 5) was diagnosed as an alcohol abuser on 20050418 by another provider.  The service records indicate that the Applicant was notified that he was being administratively processed for separation due to a pattern of misconduct, commission of a serious offense and alcohol rehabilitation failure.  He waived all of his rights except to receive documents.  The separation authority approved an OTH discharge by reason of pattern of misconduct.  The Applicant’s contention is without merit since the separation authority approved the discharge due pattern of misconduct and not due to alcohol rehabilitation failure.  Despite the fact that the Applicant was initially diagnosed as alcohol dependent and subsequently diagnosed as an alcohol abuser by the second provider, the requirements for processing him due to alcohol rehabilitation failure as outlined in MILPERSMAN 1919-152 had been met.  The Applicant returned to alcohol abuse within a couple of months following treatment which consisted of attending the Alcohol Impact course.  Based on the foregoing, the board determined that the Applicant's discharge characterization accurately reflects his service to his country.

The following is provided for the edification of the Applicant.  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 being discharged from the Navy.  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 should 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 Applicant has not provided any documentation for the Board to consider.  Relief on this basis is not possible at this time.

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)	20020524 - 20020915  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20020916	Years Contracted:  ; Extension:    	Date of Discharge:  20050426
Length of Service:  02  Yrs  07  Mths  11  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  85	Highest Rank/Rate:  AE3
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A		 OTA:  N/A 
Awards and Decorations (per DD 214):  NDSM, GWOTSM, OSR

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

20040917:	Applicant arrested by Guam Police Department for disorderly conduct, public intoxication, and criminal mischief.  Attorney General of Guam declined prosecution of the case and forwarded jurisdiction to the military.  Applicant awarded NJP on 20041014.
 
20041014:	NJP -- Viol UCMJ Art. 109 – Damage to GPD property; viol UCMJ Art. 134 – Drunk and disorderly conduct.
	Awarded - FOP ($747.00) for (2 months) 1 month suspended for 6 months; RIR (E-3); Extra duties (45 days).

20041018:	Retention Warning for CO’s NJP on 20041014 for destruction of property, not the United States military; and drunk and disorderly conduct.

20041104:	Applicant completed ASAM Level 0.5 (Alcohol Impact).
  
20050224:	NJP -- Viol UCMJ Art. 90 – (2 Specs), Assaulting a commissioned officer;(struck on ear and face with fist) viol UCMJ Art. 134 – Drunk and disorderly conduct in Sasebo, Japan.
	Awarded - FOP ($500.00) for (2 months) suspended for 6 months; RIR (E-2); Restr for (60 days).Vacate previously suspended RIR.

20050421:	Medical Record:  Reason for visit:  Assaulting an officer in a bar while under the influence of alcohol.
	Recommendation:  If retained should participate in a command-monitored substance abuse program for at least one year, to include the following: Meet with the Command DAPA on a weekly basis to review progress on assigned aftercare plan.  This case should be reviewed quarterly by the patient and the Commanding Officer or designated representative.  Attend a minimum of 26 Continuing Care group sessions.  The command DAPA should schedule the Continuing Care group with the appropriate area site that provides this service.

Discharge Process

Date Notified:					20050228
Reason for Discharge:	 - 
	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20050310
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (20050314)
Separation Authority (date):	COMMANDER, U.S. NAVAL FORCES MARIANAS (20050323)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050426

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)       

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 
26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 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