ex-MCSN, USN

Current Discharge and Applicant’s Request

Application Received: 20100407
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)	20040427 - 20041024  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20041025	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20061228	Highest Rank/Rate:  MCSN
Length of Service:   Year(s)     Month(s)   04 Day(s)
Education Level:  	AFQT:  81
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	   NMCOSR

Periods of UA/CONF:  

NJP:  

- 20050131:	Article  (Failure to obey an lawful order or regulation) 
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20050131:	For NJP awarded on 20050131 for violation of UCMJ, Article 92, Failure to obey an order or regulation    

- 20060421:	For ASAM Level II, Alcohol Dependency 

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:	

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 29 April 2005 until 14 May 2008, Article 1910-152, SEPARATION BY REASON OF ALCOHOL 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.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of service at discharge in order to gain eligibility for Department of Veterans Affairs (VA) educational benefits.  

2.	Decisional issues: The Applicant contends that he suffered mental health issues at the time of his discharge, which went untreated, and prevented him from making a proper and full recovery regarding his alcohol use and contends that this warrants mitigation and an upgrade in the characterization of his service at discharge.  

Decision

Date:  20110628		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 NDRB 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 Applicant identified one decisional issue for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.  

The Applicant enlisted at age 22 under a four-year enlistment contract with no extension on a guarantee for Photographer Mate School.  During his period of enlistment, the Applicant received two NAVPERS 1070/613 retention-counseling warnings relating to violations of the Uniform Code of Military Justice (UCMJ) and for alcohol-related treatment and counseling.  Additionally, the Applicant’s service record included one nonjudicial punishment for violation of the UCMJ - Article 92 (Failure to obey an order or regulation).  The Applicant’s record of service does also reflect his attendance at a 23-day period of intensive outpatient treatment for alcohol dependence and, upon his successful completion of the treatment program, assignment to a formal aftercare treatment plan and return to his command for continued care and monitoring of compliance.  The Applicant was later determined to have been in an alcohol-related incident and was processed subsequently for administrative discharge.  Due to the nature of the alcohol-related incidents, which led to the Applicant’s separation as a treatment failure, he was notified that he was being processed for discharge in accordance with the Naval Military Personnel Manual (MILPERSMAN) for both Alcohol Rehabilitation Treatment failure (Article 1910-152) and for Misconduct - Commission of a Serious Offense (Article 1910-142).  The Applicant was notified of the proposed recommendation for separation on 30 November 2006; he acknowledged - in writing - his understanding of the proposed basis for separation and that the least favorable characterization of service possible was General (Under Honorable Conditions).  The Applicant further elected to waive his right to consult with qualified legal counsel and opted not to submit written matters in rebuttal to the Separation Authority.  Due to the least favorable characterization of service proposed and the limited time in service, the Applicant did not warrant an administrative discharge hearing board.  On 01 December 2006, the Separation Authority determined that separation was warranted pursuant to both Article 1910-152 (Alcohol Treatment Failure) and Article 1910-142 (Misconduct - Commission of a Serious Offense).  The Applicant was discharged on 28 December 2006 with a narrative reason for separation of Alcohol Rehabilitation Failure.

Nondecisional Issues - The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility for Department of Veterans Affairs (VA) educational benefits.  The VA makes its own determination regarding eligibility for service benefits.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Additionally, 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 solely to a determination of the propriety and the equity of a discharge.  The Applicant is directed to the Addendum regarding these issues.   

:  (Decisional) ()  .  The Applicant contends that he suffered mental health issues at the time of his discharge, which went untreated, and prevented him from making a proper and full recovery regarding his alcohol use and contends that this warrants mitigation and an upgrade in the characterization of his service at discharge.  

Propriety - In accordance with Article 1910-152 of the Naval Military Personnel Manual (MILPERSMAN), commands shall process for administrative separation all members considered treatment failures - unless a written waiver is obtained from the Commander, Navy Personnel Command.  The Applicant self-referred himself for alcohol treatment.  After screening, he was evaluated by the Substance Abuse Rehabilitation Program (SARP) personnel who determined that the Applicant was alcohol dependent.  The Applicant was assigned to participate in an Intensive Outpatient Care program for 23 days.  The Applicant successfully completed this program of treatment and was assigned to a written aftercare program - signed by the Applicant and witnessed -  which included his abstinence from alcohol, a requirement for follow-up counseling and participation in support groups, and a specific advisement regarding separation for failure to comply or for any involvement in an alcohol related incident.  Based on a review of the Applicant’s official service records, he violated his aftercare program on multiple occasions; however, on 08 November 2006, he was determined to be unfit for duty due to intoxication.  He was referred back to the SARP for evaluation; he was formally classified as a treatment failure by the SARP due to the alcohol-related incident on 08 November and his documented relapses in May 2006.  Based on a detailed review of the Applicant’s discharge package and supporting documentation, coupled with a review of the medical records and alcohol treatment program documentation, the NDRB determined that the Applicant was an Alcohol Rehabilitation Treatment program failure, that processing for separation was mandatory, and that the discharge was proper as issued.  As such, no change in the narrative reason for discharge or the characterization of the applicant’s service at discharge based on propriety is warranted.

 - The Applicant contends that his discharge was overly harsh and that untreated mental health issues mitigated the severity of his alcohol problem.  The Applicant’s only supporting documentation to this assertion is a post-service civilian alcohol treatment program that mentioned a long-term emotional issue from childhood.  The Applicant’s medical record reflects that he completed an intensive outpatient treatment program after being diagnosed as alcohol dependent.  While in treatment, his records reflect that he received counseling services, was found fit for duty, and was not recommended for any further psychiatric or psychological treatment.  Moreover, there is no evidence in the record, nor did the Applicant provide any evidence, to indicate that he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  Upon completion of intensive outpatient alcohol treatment program, the Applicant was assigned to an aftercare program and was counseled, in writing, regarding mandatory processing for separation for violation of his aftercare program or any future alcohol-related incident.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he suffered from undiagnosed/untreated mental health issues that prevented him from proper conduct.  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.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

In accordance with the MILPERSMAN (article 1910-152), the characterization of separation should be General (Under Honorable Conditions), unless an Entry Level Separation (ELS) or Honorable characterization is warranted per MILPERSMAN 1910-304.  An Honorable characterization of service at discharge is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  Based on the Applicant’s record of service, the NDRB determined that his service was honest and faithful, but that significant negative aspects of the member’s conduct or performance of duty did outweigh the positive aspects of his service record.  The NDRB found the characterization of the Applicant’s discharge was proper, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  The NDRB discerned no impropriety or inequity in the characterization of the applicant’s service at discharge.  Relief denied.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries, and discharge process, the NDRB determined that   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 and Post-Service Conduct.

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