Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND07-00831

ex-FCSN, USN

Current Discharge and Applicant’s Request

Application Received:  20070603 
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19890426 - 19890820  COG		
Period of Service Under Review:
Date of Enlistment: 19890821	Period of enlistment:  4 Years  24 Months	Date of Discharge:  19920603
Length of Service:  02 Yrs 09 Mths 13 Dys	Education Level:  12	Age at Enlistment:  18	AFQT:  94 
Highest Rank/Rate:  FC3	Evaluation marks:  Performance: N/A	Behavior: N/A	OTA:  N/A 
Awards and Decorations (per DD 214):  NDSM SWASM (2)

UA:	19901016 and 19901215

NJP:	19910109:  Art(s) 86 (unathorized absence), 134 (underage drinking, 2 specs).  Awarded - FOP RESTR EPD RIR		Susp - RIR
	19910426:  Art(s) 111(DUI), 134 (underage drinking).  Awarded - FOP RESTR EPD	

Retention Warning: 
	19910109:  For Article 86 and 134 (underage drinking, 2 specs) advised of assistance available.
	19910426:  For Article 111 (DUI) and 134 (underage drinking).
	19910603:  For Article 111 (DWI) directed to attend CAAC Level II, 3 AA meetings per week, and meet with command DAPA weekly.

19910724:  Completed CAAC Level II alcohol treatment 

Types of Documents Submitted

Related to Military Service:	DD 214:  ☒	Service and/or Medical Record:  ☐	Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
	
Additional Statements From Applicant:  ☐		From Representation:  ☐		From Member of Congress:  ☐
Other Documentation (Describe) ☐

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

Applicant’s Issues

1.  Offenses were off duty and did not affect performance of duties.
2.  Issues were alcohol related and was not offered counseling or assistance even though ask for help.
3.  Not provided legal counseling or assistance during discharge process.

Decision

Date:  20080124	DOCUMENTARY REVIEW	Location:  Washington D.C	 Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

Discussion
Issue 1 (Equity):  The Applicant contends that his offenses were off duty and did not affect his military performance.  The record clearly documents the Applicant’s two nonjudicial punishments for violations of UCMJ Articles 86 (unauthorized absence), 111 (driving under the influence of alcohol) and 134 (underage drinking).  A violation of UCMJ Article 111 is defined by the manual for courts-martial as serious offenses and as such constitutes the “commission of a serious offense” basis of discharge.  This violation is punishable by a bad conduct discharge and up to six months of imprisonment if adjudicated by a Courts Martial.  The Board contends that the Applicant’s incidents affected his military performance in many ways i.e. lost work days due to court, medical expenses, lost days when he had to be flown from a port visit due to his overindulgence in alcohol to name a few.  Regulations limit 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 2 (Equity):  The Applicant states that he was not offered any assistance with his alcohol problem even after he asked for it.  To the contrary the record documents the Applicant’s DAPA processing, attendance at CAAC Level II treatment, direction to attend 3 AA meeting per week, refrain from further alcohol use and report his progress weekly to the command DAPA.  This issue is without merit.

Issue 3 (Propriety):  The Applicant argues that he was not offered proper legal assistance during his discharge process.  The official record contains the full discharge package wherein the Applicant was properly notified of his impending discharge by reason of misconduct due to the commission of a serious offense and by reason of alcohol rehabilitation failure.  In this discharge notification the Applicant responded in writing to his Commanding Officer acknowledging the discharge process and stating that he had sought legal counsel.  Subsequently the Applicant submitted a letter to the discharge authority who after ensuring the process had been conducted properly directed the Applicant’s discharge under other then honorable conditions by reason of misconduct due to the commission of a serious offense.  This issue is without merit.    

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 August 1991 until 4 March 1993, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 111.

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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water