ex-EN3, USN

Current Discharge and Applicant’s Request

Application Received: 20100730
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)	19980722 - 19980729  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19980730	Age at Enlistment:  
Period of Enlistment:   Years  47 MONTHS Extension
Date of Discharge:  20050527	Highest Rank/Rate:  EN2
Length of Service:   Year(s)     Month(s)   28 Day(s)
Education Level:  	AFQT:  92
Evaluation Marks:	Performance:  3.5 (4)	Behavior:  2.5 (4)	OTA:  3.28

Awards and Decorations (per DD 214):	Pistol     (2)  (3) OSR (2)  (3)  ESWS

Periods of CONF:  

NJP:  

- 19990827:	Article  (Failure to obey an order or regulation, 19990826) 
	Awarded:   (to E-2)   Suspended:  

- 20000406:	Article  (Provoking speeches or gestures, 20000328) 
	Article  (Disorderly conduct, drunkenness, 20000328) 
	Awarded:   (to E-1)   Suspended:  

- 20040501:	Article  (Disobeying a lawful order) 
	Article  (Drunk and disorderly) 
	Awarded: Assignment Class “C” Liberty (Patriot Escort Required), No alcohol consumption, Assignment to Level III Alcohol Abuse Treatment, Page 13 Warning

- 20041007:	Article  (Absence without leave, 20040924) 
	Article  (Failure to obey order or regulation, 20040924, 2 specifications)
	Specification 1: Wrongfully consume alcohol while on Class “A” Liberty Risk
	Specification 2: Wrongfully removing the green sticker from his identification card before coming onboard the ship   
	Awarded:  FOP (to E-4)   Suspended:  

SCM:  	SPCM:  

CC:  

	- 20040204:		Civil conviction in San Diego court; details unknown; found in eval 03MAY13 to 04MAR15

Retention Warning Counseling:  

- 19990609:	For excessive drinking of alcohol and drunkenness while on liberty.  

- 20040501:	For alcohol dependence as stated by your medical record. 

- 20041007:	For CO’s NJP for violation of Article 86, Absence without leave, and Article 92, Failure to obey an order or regulation. 

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.	Applicant contends his discharge was inequitable based on his honorable service only impaired by the “medical condition of alcoholism.”
2.	Applicant contends Post-Traumatic Stress Disorder (PTSD) contributed to the circumstances for which he was separated.

Decision

Date:  20111129		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 Applicant identified two decisional issues for the Board’s consideration.  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) retention warnings for excessive drinking and drunkenness (Jun 1999), alcohol dependence (May 2004), and violation of Uniform Code of Military Justice (UCMJ) Articles 86 and 92 (Oct 2004).  The record also reflected   for  of the UCMJ: Article 86 (Absence without leave, 2100-2127 on 24 Sep 2004, violated liberty risk status and went ashore), Article 91 (Willfully disobey a warrant or noncommissioned petty officer), Article 92 (Failure to obey an order or regulation, 3 specifications: 26 Aug 1999; 24 Sep 2004, wrongfully consumed alcohol while on Class ‘A’ Liberty Risk status and removed green sticker from his ID card before reporting back aboard ship), Article 117 (Provoking speech or gestures, 28 Mar 2000), and Article 134 (Drunk and disorderly).  The Applicant also had a pre-service offense waiver for a civilian driving under the influence (DUI) charge (Jul 1997) prior to entering the Navy and a civilian conviction in a San Diego court on 4 Feb 2004.  The record also revealed the Applicant completed Level I alcohol rehabilitation treatment (ART) followed by Level III in-patient (Jan-Feb 2005) treatment.  Based on the repeated offenses committed by the Applicant and continued alcohol-related incidents after completing two ART programs, his command administratively processed him for separation, which is mandatory per the Naval Military Personnel Manual (MILPERSMAN).  When notified of administrative separation processing using the  procedure on 11 May 2005, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  The Applicant was separated from the Navy on 27 May 2005 with a General (Under Honorable Conditions) discharge due to Alcohol Rehabilitation Failure.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable based on his honorable service only impaired by the “medical condition of alcoholism.”  Despite a service member’s prior record of service, MILPERSMAN section 1910-152 requires mandatory administrative discharge processing when a Sailor has been determined to be an alcohol rehabilitation failure.  The Applicant received a waiver to enter the Navy in 1998 due to a DUI he received in 1997.  While he may feel alcoholism was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) characterization of service is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  The Applicant’s conduct (evidenced by three retention warnings and four NJPs), which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and falls short of what is required for upgrade to an Honorable characterization of service.  Relief denied.

:  (Decisional) ()  .  The Applicant contends PTSD contributed to the circumstances for which he was separated.  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 NDRB found no medical diagnosis in the record to support the Applicant’s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim.  A letter from a Ph.D. at a Department of Veterans Affairs Medical Center discusses alcohol abuse after serving in a war zone and being symptomatic of untreated PTSD.  However, the Applicant had a pre-service DUI and several alcohol-related retention warnings and NJPs prior to serving in a war zone.  Additionally, the Board could find no evidence within the records that the Applicant had experienced any type of traumatic events during his service in the Navy.  While he may feel PTSD was an underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  With no substantial or credible evidence to overcome or question the presumption of regularity, the Board found this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation 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 for additional information.

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