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

Docket No. ND08-01476

ex-MMFR, USN

Current Discharge and Applicant’s Request

Application Received:  20080707
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) 20001129 - 2001211  	Active:  

Period of Service Under Review:
Date of Enlistment:  20001212	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20021126     	Highest Rank/Rate:  MMFN
Length of Service:   Years     Months   15 Days
Education Level:  	AFQT:  34
Evaluation Marks:  Performance:  3.0 (1)                 Behavior:  3.0 (1)           OTA:  2.83

Awards and Decorations (per DD 214):     

Periods of UA/CONF:  

NJP:  
- 20010404:	Article 121 (Larceny)
	Awarded:    Suspended:  

- 20011219:	Article 134 (Drunk and disorderly)
	Awarded:   Suspended:  

- 20020815:	Article 113 (Misbehavior of sentinel or lookout)
	Article 134 (Drunkenness)
	Awarded:     Suspended:  

- 20021119:	Article 86 (UA)
	Article 134 (Drunkenness)
	Awarded: FOP    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

-  20010404:  For poor military performance, to wit: larceny.
-  20011228:  For completion of rehabilitation treatment program and requirements of aftercare program.

NDRB Documentary Review Conducted (date):	20040608
NDRB Documentary Review Docket Number:	ND03-01395
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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

Applicant Testified:  
Applicant Available for Questions:  
Witnesses:  Mr. Walker and Mr. Toppings
Observers:  Cdr Rodrock and LCdr Johnson

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
25 January 2004, 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 86 (UA); Article 113 (Misbehavior of sentinel or lookout); Article 121 (Larceny) and Article 134 (Disorderly conduct, drunkenness).

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

Applicant’s Issues

1.  Discharge does not accurately reflect his character of service. 
2.  Misconduct was due to mitigating circumstances (Alcohol).
3.  Post service conduct.  

Decision

Date:  20090318           Location:  Washington D.C.     Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:  ()  .  The Applicant contends his “General (Under Honorable Conditions)” discharge does not accurately reflect his character of service and therefore he requests an upgrade to “Honorable”.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service was marred by two retention warnings and four NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), Article 113 (Misbehavior of sentinel or lookout), Article 121 (Larceny) and Article 134 (Disorderly conduct, drunkenness).  These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial.  The Applicant was in the military approximately 23 months and his misconduct occurred over a period of 19 months.  The Applicant processed through boot camp and within a short period of time afterwards began non-stop misconduct which resulted in the above mentioned 4 NJP’s.  This misconduct didn’t cease until discharge from the Navy.  The command did not refer the Applicant for a court martial but opted instead for an administrative discharge.  The Board determined the awarded discharge accurately reflected the Applicant’s character of service and an upgrade would be inappropriate. 

:  ()  .  The Applicant contends his alcohol dependency contributed to and mitigated his misconduct of record.  The record shows alcohol was a contributing factor in 3 of the 4 NJP’s the Applicant was awarded.  The Applicant had an alcohol incident on 24 October 2001 in which his Blood Alcohol Level (BAL) was 0.296.  Although this did not result in misconduct, it triggered the command to seek treatment for the Applicant.  The Applicant was diagnosed as an alcohol abuser and was prescribed “Outpatient” treatment between 13 and 23 November 2001.  During the period of treatment, the Applicant had another incident on 18 November 2001, which involved him dislocating his thumb by falling down some stairs at a night club.  The Applicant’s BAL this time was 0.308 when tested at the hospital.  The Applicant completed treatment, per his counseling remarks dated 28 November 2001.  

On 19 December 2001, the Applicant was subject to his second NJP (first due to alcohol) from the incident that occurred on 18 November 2001.  Over the next 11 months, the Applicant was subject to two more NJP’s, both of which involved alcohol.  A review of his record indicates the Applicant repeatedly denied having problems with alcohol when discussing this issue with his doctors.  The events that transpired during the Applicant’s career in the Navy were a direct result of the Applicant’s self-denial he had an alcohol problem and the Navy only diagnosing him as an alcohol abuser and not as being alcohol dependent.  Although the Applicant may feel alcohol was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to alcohol use or abuse.  The Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.

:  ()  .   The Applicant contends his post-service conduct merits an upgrade to an “Honorable” characterization of service.  The Applicant provided two references from employers, K-Mart and U Street Parking Inc., to document his work history over the last couple years.  The Applicant has been attending Alcoholic Anonymous (AA) 

once a week since August 2008.  On the Applicant’s behalf two witnesses (Mr. W. and Mr. T.) appeared before the Board to give testimony on his progress in AA and his good standing within the community, which includes attending Bible study 3 to 4 
times a week.  The Board commends the Applicant on his progress in fighting his alcohol addiction and also applauds his commitment to his employer, community and church.  Additionally, the Board was impressed with the fact both witness’ appeared on their own accord and not at the request of the Applicant; this is how highly they regard the Applicant.  However, the Board determined the Applicant’s post service efforts needed to be more encompassing.  The characterization of service received, “General (Under Honorable Conditions)”, was determined to be an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the limited post service documentation provided did not warrant an upgrade to “Honorable”.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

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 or is referred to a court martial 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 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 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 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 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 – Non-judicial 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			CC - Civilian conviction

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