ex-SK3, USN
ND07-00391

Current Discharge and Applicant’s Request

Application Received:  20070209 	Characterization Received:  
Narrative Reason:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE: Authority:  MILPERSMAN 1910-142

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

Applicant’s Issues:	1.  Reenlist
			2.  One isolated incident (not related to service), otherwise 24 months of honorable service.
			3.  Result of alcoholic behavior.
			4.  Post Service – completed alcohol and chemical treatment, employed.

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

Date:  20071018  					Location:  Washington D.C. 

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding.  

Issue 2 ():  The Applicant states his discharge was based on one isolated incident without regard to his 24 months of honorable service.  Despite a servicemember’s prior record of service certain serious offenses warrant separation from naval service in order to maintain proper order and discipline.  The record documents the Applicant’s civil conviction for vehicular homicide, which is the basis for his discharge.  The Applicant consulted with an attorney and elected to have his case presented before and administrative discharge board.  The subsequent administrative discharge board determined that the Applicant had committed misconduct by the commission of a serious offense that this misconduct warranted discharge and the Applicant’s service should be characterized as under other than honorable conditions.  Regulation limits the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  

Issue 3 ():  The Applicant contends that his discharge was inequitable because of his alcoholism.  The Board reviews the propriety and equity of each Applicant’s discharge individually.  The Applicant’s service was marred by his civil conviction for homicide while driving under the influence of alcohol.  Violations of UCMJ Article 134a are considered the commission of a serious offense; specifically this offense carries a maximum penalty of a Dishonorable Discharge and up to 3 years of imprisonment.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. 

Issue 4 (Equity):  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided reference letters, evidence of his past and current employment and his alcohol and chemical dependence rehabilitation certificate of completion as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  

Summary of Service

Prior Service:
Inactive: NONE			Active:   
Period of Service Under Review:
Date of Enlistment: 20020328		Years Contracted:  2		Date of Discharge:  20050311
Length of Service:  02 Yrs 11 Mths 14 Dys				Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  80	Highest Rank/Rate:  SK3
Evaluation marks (# of occasions):	Performance:  3.0		Behavior:  3.0	 OTA:  3.00 (1)
Awards and Decorations (per DD 214):  NONE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20040322:	Civil Conviction:  Kitsap County Superior Court for vehicular homicide.
	Sentence:  Jail for 36 months.

20041204:	Administrative board unanimously found the Applicant had committed misconduct which warranted separation with a characterization of service as under other than honorable conditions.

Discharge Process

Date Notified:					20040810
Reason for Discharge:	MISCONDUCT - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20040810
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement (date)			  (NOT FOUND IN RECORD)
	Administrative Board			

Administrative Board Date:	20041204
              Findings, by preponderance of the evidence:	BY   -  .
	BY  SEPARATION  WARRANTED.
              Recommendation on Separation: 	BY  
              Recommendation on Characterization:	BY  

Commanding Officer Recommendation (date):	 (20041208)
Separation Authority (date):	NAVPERSCOM (20050309)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050310

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Letter to applicant from Navy Personnel Command
Letter to applicant from Department of Veterans Affairs
Letter from Department of Corrections, Office of Correctional Operations, Port Orchard Office
Letter from Washington State Department of Natural Resources
Letter from S_ M_ Hardware
Substance Assessment/Treatment Report
Certificate of Recognition for participating in a chemical dependency treatment program
Certificate of Recognition for completion of a chemical dependentcy treatment continuum including outpatient treatment program
Chemical Dependency Assessment Summary

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134.

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 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 “PTSD.”  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 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.  

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