ex-MMFN, USN

Current Discharge and Applicant’s Request

Application Received: 20140909
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) ALCOHOL REHABILITATION FAILURE
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-152 [ALCOHOL REHABILITATION FAILURE]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	SECRETARIAL AUTHORITY
	
Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20100318 - 20100427  COG	Active:	NONE 

Period of Service Under Review:

Date of Current Enlistment:  20100428	Age at Enlistment:  25
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20111108	Highest Rank/Rate:  MMFN
Length of Service:  01 Year(s)   06  Month(s)   12 Day(s)
Education Level:  12	AFQT:  68
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  3.0 (2)	OTA:  3.00

Awards and Decorations (per DD 214):	NDSM GWOTSM

Periods of UA/CONF:  NONE

NJP:  1  

20110524:	Article 134 (General Article, Obstructing Justice)
	Awarded:  RIR FOP  Suspended:  RIR

SCM:  NONE  	SPCM:  NONE  	CC:  NONE  	   Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20140403
NDRB Documentary Review Docket Number:	ND13-01818
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 29, 23 November 2009 until Present, Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE OR MULTIPLE DRIVING UNDER THE INFLUENCE (DUI) / DRIVING WHILE INTOXICATED (DWIs).

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that she was improperly identified as an Alcohol Rehabilitation Failure (ARF) as delineated under MILPERSMAN 1910-152 and OPNAVINST 5350.4D and because she was never charged with an alcohol related incident.    
2.	The Applicant contends that the circumstances surrounding her identification as an ARF, particularly how the information that formed the basis for this identification was obtained and used, was inequitable.   
3.    The Applicant contended that her NJP was inequitable because she was taken to NJP on three different dates for the same offenses.

Decision

Date:  20150409	PERSONAL APPEARANCE HEARING	Location:  Washington D.C.	Representation:  Civilian Counsel

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain ALCOHOL REHABILITATION FAILURE.

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 did complete a thorough review of the circumstances that led to the discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 134 (General Article, Obstructing Justice).  Based on an alcohol rehabilitation failure, her command administratively processed her for separation.  When notified of administrative separation processing on 18 July 2011 using the notification procedure, the Applicant elected her rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that she was improperly identified as an Alcohol Rehabilitation Failure (ARF) as delineated under MILPERSMAN 1910-152 and OPNAVINST 5350.4D and because she was never charged with an alcohol related incident.  The Applicant provided legal documents, excerpts from various DoD policies, letters of support from SARP personnel, letters of reference, and college transcripts.  The Applicant was initially diagnosed as alcohol dependent following a self-referral for alcohol abuse.  She completed an intensive outpatient Substance Abuse Rehabilitation Program (SARP) on 15 April 2011 and was enrolled in the continuing care program.  She was being processed for NJP for three offenses at the same time that the command was also processing her administrative separation for Alcohol Rehabilitation Failure (ARF).  On 24 May 2011, the ship’s psychologist provides a memo to the Commanding Officer (CO) with the results of her SARP evaluation stating the Applicant’s recurrent alcohol use in situations in which it is hazardous indicates return to Alcohol Abuse as defined in DSM IV-R.  This constitutes an ARF per MILPERSMAN 1910-152 paragraph 3d.   

Although the Applicant provides letters of support from SARP personnel from the Bremerton Naval Hospital, there is evidence that she was not being truthful about her drinking during the continuing care interviews.  On 11 May 2011 at 1055, the Applicant’s medical record documents that during a meeting with her continuing care group she responded “Yes” when asked if she had maintained total abstinence from alcohol.  She admitted to having attended only one AA meeting and being on the verge of relapse.  Later that same day on 11 May 2011 at 1436 during an interview with NCIS, she admitted to drinking and being overly intoxicated on 7 May 2011.  On 20 May 2011, she had an appointment with the ship’s psychologist which references her return to drinking, and not being honest with her continuing care group.  There were additional statements from a command investigation report dated 07 May 2011 where witnesses had seen her drinking in bars in April.   

In her request to the NDRB for a document review, the Applicant states that the ship’s psychiatrist had drafted the 24 May 2011 memo declaring her an ARF without it being based on a personal interview.  The Applicant’s medical record contains documentation of an appointment on 20 May 2011 with the same psychologist which contained comments on the service member’s appearance, dress and her concerns associated with the pending captain’s mast that afternoon as well as a reference to a few incidents of return to drinking behavior.  Additionally, it was the same doctor who initially diagnosed the Applicant as alcohol dependent on 14 January 2011.    

MILPERSMAN 1910-152 paragraph 3 defines treatment failures based on any of four criteria.  The command based her ARF on the return to alcohol abuse rather than a specific alcohol related incident.  Her NJP charges were not related to the ARF determination.  After she was found guilty at NJP and her appeal was denied on 11 July 2011, misconduct for commission of a serious offense was added as a basis to her administrative separation processing on 18 July 2011.  Her final administrative separation was reviewed by the approved by Carrier Strike Group ELEVEN on 25 Oct 2011 and listed ARF as the narrative reason for separation.  The Applicant’s discharge characterization General (Under Honorable Conditions) is proper in accordance with MILPERSMAN 1910-152.  Relief denied.
 
Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the circumstances surrounding her identification as an ARF, particularly how the information that formed the basis for this identification was obtained and used, was inequitable.  The Applicant provided a copy of a statement from an NCIS interview that occurred on 11 May 2011 where she disclosed that she had several drinks at a bar on 07 May 2011 and then did not remember how she got home because of her level of intoxication.  The Applicant contends that her disclosure to an NCIS agent was protected communication and that she had not been read her Article 31 rights against self-incrimination and referenced Title 10 USC whistleblower protection acts and citations from the UCMJ concerning compulsory self-incrimination.  The investigator’s statement was used by medical personnel and the command in determining that the Applicant was an ARF resulting in administrative separation proceedings.  The information was not used at NJP or for punitive reasons.  Interviews with law enforcement are not considered protected and the applicant was not part of any whistleblower or other program that would have provided an agreement of protection.  In her statement to the NDRB and during her hearing, the Applicant testified that she had already disclosed the slip in sobriety to her SARP counselors, and that they “knew about the incident before the USS Nimitz was aware of it.”  There were additional witnesses statements attesting to her drinking in bars provided during a command investigation dated 07 May 2011.   Had the NCIS interview not occurred, the admission to medical personnel or the command results could also have been used to document an ARF.    Relief denied.
 
Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  During the hearing the applicant contended that her NJP was inequitable because she was taken to NJP on three different dates for the same offenses.   She contends that placed her in former jeopardy for being tried for the same offense twice and double jeopardy for being given the same punishment twice.  The Applicant was charged with violations of the UCMJ Article 92 (Failure to obey a lawful general order or regulation), Article 107 (False Official Statement) and Article 134 (General Article, Obstructing Justice).  The Applicant was scheduled for NJP three times.  On the first occasion on 17 May 2011, the Captain’s Mast was stopped to allow time to completely review some cell phone and other electronic records.  There is no indication that the proceeding was concluded nor was any punishment awarded.   NJP was scheduled again was on 20 May 2011 with the same charges.  The Applicant was found guilty by the CO and awarded ten days of restriction, forfeiture of pay, reduction in pay grade, and extra duties.   After the proceedings, the Applicant claimed that she was not aware of a pen and ink change to the specification to one of the charges and could not properly prepare her defense.  That NJP was set aside based on her complaint, and she was credited with the restriction time served.  She was rescheduled for the NJP again on 24 May 2011 and found guilty of Article 134 (General Article, Obstructing Justice).  She was awarded reduction in pay grade (suspended 6 months), forfeiture of pay and ten days of restriction and extra duty.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain ALCOHOL REHABILITATION FAILURE.

The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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