ex-ET3, USN

Current Discharge and Applicant’s Request
Application Received: 20091021
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)	20021210 - 20030202  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20030203	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050301	Highest Rank/Rate:  ET3
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  	AFQT:  76
Evaluation Marks:	Performance:  3.00 (3)	Behavior:  2.60 (3)	OTA:  2.17 (3)
Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20041004:	For being identified by psychiatric evaluation that you are an alcohol abuser and were recommended to attend Level 1.0 SARP; that your personal history is suggestive of high risk development of a significant alcohol disorder, of the negative physical and psychological effects of your alcohol use and to discontinue alcohol use at present.
- 20041022:	For failure of physical fitness assessment in exceeding height/weight and body fat limits with weight measured at 229 pounds and 32 percent body fat.

Administrative Corrections to the Applicant’s DD 214
The NDRB did note administrative error(s) on the original DD Form 214:

	  “GENERAL (UNDER HONORABLE CONDITIONS)”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

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

Applicant’s Issues

1.	Applicant seeks change to DD-214 reenlistment code from RE-4 to RE-3D.
2.	Applicant seeks upgrade to obtain commission as an officer in the U.S. Armed Forces.
3.	Applicant contends his referral to alcohol rehabilitation treatment was based on a confidential conversation he had with a medical officer and that he did not attend treatment to ensure his service record was not tarnished.
4.	Applicant contends his post-service achievements are indicative of his true character.

Decision

Date:  20101209		Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) warnings for being an alcohol abuser at risk of development of an alcohol disorder and for failing the height/weight and body fat portions of the physical fitness assessment.  The record did not include any history of UCMJ nonjudicial punishment or trials by court-martial.  The record also reflected the Applicant’s failure of Substance Abuse Rehabilitation Program (SARP) Level 1.0 alcohol rehabilitation treatment on 10 Feb 2005.  Based on the Applicant’s failure to successfully complete alcohol rehabilitation treatment, he was mandatorily processed for administrative separation, in accordance with U.S. Navy Military Personnel Manual (MILPERSMAN) section 1910 and OPNAVINST 5340.4C.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, or request a General Court-Martial Convening Authority review.

:  (Nondecisional) The Applicant seeks a change to the DD-214 reenlistment code from RE-4 to RE-3D and an upgrade to obtain a commission as an officer in the U.S. Armed Forces.  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 can make changes to reenlistment codes.  Additionally, the NDRB 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.

:  (Decisional) ()  .  The Applicant contends his referral to alcohol rehabilitation treatment was based on a confidential conversation he had with a medical officer and that he did not attend rehabilitation treatment to ensure his service record was not tarnished.  Conversations with military medical officers are not confidential.  Information concerning patient health and treatment is considered private and is protected under the applicable directives to include the Privacy Act of 1974.  Notwithstanding, medical officers must inform commanding officers of health-related issues of personnel under their charge that affect combat readiness.  In the Applicant’s case, he had been referred to the Unit Medical Officer (UMO) on 19 Aug 2004 for follow-up evaluation after conversations the Applicant had with the Base Chaplain, which revealed suicidal ideations.  The UMO stated in his evaluation that the Applicant had been reprimanded in front of his classmates by a petty officer, which made him angry and that his “work environment made him want to kill himself,” though he later stated to the UMO that he wanted to stay in the Navy.  Based on the UMO’s evaluation, the Applicant was referred for a mental health assessment in September 2004.  The mental health assessment was completed on 15 Sep 2004, which found the Applicant to depend on alcohol in dealing with stress or anger.  The assessment also revealed that the Applicant expressed his desire to not remain in the Navy.  The Mental Health Department report provided recommendations to the Applicant’s command that included: return to full duty with UMO waiver processing (as required); SARP Level 1.0 alcohol rehabilitation outpatient treatment; and attendance at anger/stress management classes.  The Applicant was enrolled in outpatient alcohol rehabilitation treatment on 1 Feb 2005.  The records reveal that on the evening of 9 Feb 2005 he drank alcohol and failed to report to outpatient treatment the next day.  The Applicant reported to his command and stated he believed he was an alcohol treatment failure based on his resumption of consuming alcohol.  The subsequent SARP treatment failure report on the Applicant, dated 15 Feb 2005, stated the Applicant likely consumed alcohol on purpose to effect his separation from the Navy.  After consideration of all the facts and available evidence, the Board determined the processing of the Applicant for administrative separation was proper and this issue to be without merit.  RELIEF DENIED.

Issue 4:  (Decisional) ()  .  The Applicant contends his post-service achievements are indicative of his true character.  In his Application for Review of Discharge (DD-293), the Applicant’s personal statement claims he has grown to be a responsible man, having earned his bachelor degree, gotten married, and established himself as a valuable long-term employee at Rockwell Collins Corporation.  Unfortunately, the Applicant provided no documentation to support his claims.  Documentation could have included ; letters of recommendation from his employers; letters of personal reference; ; completion of alcohol rehabilitation; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable).  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  The Board conducted a detailed review of the Applicant’s service and medical records and found that without credible, verifiable documentation to provide substantive evidence of impropriety or inequity in support of the Applicant’s claim, the Board must presume regularity in the administrative discharge and resultant characterization of service of the Applicant.  RELIEF DENIED.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and administrative discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL 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 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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