ex-AR, USN

Current Discharge and Applicant’s Request

Application Received:  20080515
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20030618 - 20030624  		               Active: 

Period of Service Under Review:
Date of Enlistment:  20030625	      Period of Enlistment:   Years   Extension	Date of Discharge: 20070629
Length of Service:   Years     Months   05 Days   Education Level:  	Age at Enlistment:  	AFQT:  42
Highest Rank/Rate:  AA	Evaluation Marks:  Performance:  NFIR	Behavior:  NFIR	 OTA:  NFIR
Awards and Decorations (per DD 214):      (3) NMCOSR (2)

Periods of UA/CONF:  NFIR

NJPs:  
          20040812:  Article 86 (Unauthorized absence)
		Article 87 (Missing movement)
              Awarded:   .  Suspended: .

20060511:  Article 128 (Assault, consummated by a battery)
                Awarded:      Suspended:  FOR 45 DAYS  OF $250.00 .

          20040812:  Article 86 (Unauthorized absence)
		 Article 87 (Missing movement)
               Awarded:    .  Suspended: 

SCMs: 
            20070506:	 Article 92 (Failure to obey other lawful order),
	 Article 134 (Drunkenness - incapacitation for performance of duties through prior wrongful indulgence in 
                                intoxicating liquor or any drug).
	 Sentence:    
	CA Action:  Approved and ordered executed 20070506.

SPCMs: 	

CC:  

Retention Warnings:  
                    20040816:  For unauthorized absence and missing movement.
                    20060624:  For being identified as ASAM Level II, alcohol abuse.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

              Other Documentation (Describe):  

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 FAILURE.

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.

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

Applicant’s Issues

1.  Discharged nine days before his EAOS.
2.  Should have been medically discharged for alcohol rehabilitation failure.

Decision

Date:  20080919    	Location:  Washington D.C.	Representation:  

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

Discussion

: ()  .  The Applicant contends his discharge should be upgraded because he served most of his time and believes he had honorable service.  He also contends he should have received a medical discharge due to his alcohol rehabilitation failure.  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.  
The Applicant’s record of service was marred by 2 retention warnings, 3 non-judicial punishments and 1 summary court martial for various violations of the Uniform Code of Military Justice which included violations of Articles 86, 87, 92, 128, and 134.  These violations represent unauthorized absence, missing ships movement, failure to obey a lawful order, assault, and drunkenness.  These are considered serious violations which are punishable by a punitive discharge and confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge but opted for an administrative discharge instead. 

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for a discharge if such a change is warranted.  The Applicant does not deny he was separated due to alcohol rehabilitation failure.  He was provided a NAVPERS 1070/613, warning of 24 June 2006 wherein he was identified as an ASAM Level II Alcohol Abuser and warned of potential administrative separation for rehabilitation failure if he had another alcohol related incident.  Members who returns to alcohol abuse any time in their career after treatment and are deemed a treatment failure by authorized personnel can be processed in accordance with provisions under MILPERSMAN 1910 – 152.  As referenced in a Drug and Alcohol Abuse Report of 30 April 2007, the Applicant was deemed a treatment failure due to incurring an alcohol related incident following level II outpatient treatment.  Pursuant to the provision referenced above, commands shall process for administrative separation all members considered to be treatment failures unless a waiver is obtained; there was no documentation the command requested a waiver on the Applicant’s behalf.  

Based on the evidence contained in Applicant’s record the requirements for separation under MILPERSMAN 1910 – 152 were met.  The Applicant's DD Form 214, Block 28, Narrative Reason for Separation, indicates he was appropriately separated for Alcohol Rehabilitation Failure.  This narrative reason clearly describes why the Applicant was discharged; therefore his argument that he should have been given a medical board is without merit.  Additionally, the Applicants argument that he was wrongfully discharged nine days prior to his EAOS is also without merit since MILPERSMAN 1910 – 152 allows for separation of a member any time during their career if there is a determination of alcohol treatment failure.  Based on a review of the evidence the Board determined an upgrade or change would be inappropriate. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court martial 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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