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

Docket No. ND09-00722

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20090209
Characterization of Service Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: PATTERN OF MISCONDUCT
Authority for Discharge:  MILPERSMAN 1910-140 (PATTERN OF MISCONDUCT)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040930 - 20050503  ELS	Active:	NONE
	USNR (DEP)   20050709 - 20050728  COG

Period of Service Under Review:
Date of Enlistment:  20050729	Age at Enlistment:  18
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20070618	Highest Rank/Rate:  AN
Length of Service:  01 Year(s)   10  Month(s)   17 Day(s)
Education Level:  12	AFQT:  35
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  2.0 (1)	OTA:  2.67

Awards and Decorations (per DD 214):	NDSM GWOTEM SSDR 

Periods of UA/CONF:  NONE

NJP:  2
- 20060211:	Article 86 (UA, absent without leave)
	Article 92 (Failure to obey order or regulation)
	Awarded: RIR RESTR FOP   Suspended:  FOP

- 20070611:	Article 92 (Failure to obey order or regulation)
	Awarded: EPD  Suspended:  NONE 

SCM:  NONE   SPCM:  NONE   CC:  NONE

Retention Warning Counseling:  2

- 20060211:  For violation of UCMJ Article 86 and 92.
- 20070127:  For violation of UCMJ Article 92, underage drinking. 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 4a, Grade, Rate or Rank, should read:  “AR”
	Block 4b, Pay Grade, should read:  “E1”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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:  ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 92.

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

Applicant’s Issues

1.  Educational opportunities.
2.  Not given a chance to correct his problem and should have been given alcohol treatment.

Decision

Date:  20090430	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

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 PATTERN OF MISCONDUCT.

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Employment/Educational Opportunities, regarding this Issue.

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was not given a proper chance to correct his problems and he should have been provided alcohol rehabilitation treatment.   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 NAVPER 1070/613 (Page 13) warnings and two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, absent without leave) and Article 92 (Failure to obey order or regulation), 2 specifications, one for underage drinking.  Violation of Article 92 is considered a serious offense 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 command did not refer the Applicant for a court martial but opted instead for an administrative discharge based on an established pattern of misconduct. 

The record of evidence shows the Applicant was given a page 13 warning after his first NJP and another one approximately five months before his second NJP.  By receiving the Page 13 warnings instead of an NJP or court-martial, the Applicant was given at least two documented opportunities by his commanding officer to correct his deficiencies, but he failed to do so.  Additionally, the NDRB could not find in the members service record, nor did the Applicant provided any additional documentation, he was ever diagnosed as alcohol dependent.  The NDRB recognizes that many of our service members engage in drinking alcoholic beverages but still manage to serve honorably and without incident.  Not all members of the military service who engage in this activity require medical assistance or intervention due to overindulgence, addiction, or abuse of alcohol.  However, should these unfortunate events occur there are numerous avenues a member may seek help from, if they desire.  While we understand these unfortunate events sometimes do occur, the NDRB does not view a member’s claim of alcohol use to be a sufficient reason for misconduct.  Prior to separation, members are offered the prescribed level of drug or alcohol treatment if they are determined to be drug or alcohol dependent.  The Applicant admitted he did not receive any alcohol treatment; however, it was also noted he was not a self-referral for alcohol abuse nor was he command referred for suspected alcohol abuse; he was not separated for alcohol rehabilitation failure; and the evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions due to alcohol or substance abuse.  The NDRB determined the awarded discharge characterization was appropriate and an upgrade is not warranted. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service  Record Entries, Discharge Process and DD Form 293 submitted by the Applicant, the Board found the discharge was proper and equitable.  

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	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

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