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

Docket No. ND09-01114

ex-AM2, USN

Current Discharge and Applicant’s Request

Application Received: 20090326
Characterization of Service Received:  (per DD 214)  HONORABLE
Narrative Reason for Discharge:  (corrected)  MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge: (per DD 214)  MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:  Characterization change to:  NONE REQUESTED
		       Narrative Reason change to:  REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19910708 - 19910917  COG	Active:	USN	19910918 - 19960718  HON
				USN	19960719 - 19991118  HON
				USN	20010130 - 20050106  HON
				USN	20050107 - 20080103  HON

Period of Service Under Review:
Date of Current Enlistment:  20080104	Age at Enlistment:  35
Period of Enlistment:  2 Years  NO Extension
Date of Discharge:  20080421	Highest Rank/Rate:  AM1
Length of Service:  00 Year(s)   03  Month(s)   18 Day(s)
Education Level:  12	AFQT:  48
Evaluation Marks:	Performance:  4.5 (2)	Behavior:  2.0 (2)	OTA:  3.07

Awards and Decorations (per DD 214):	AFEM (2) SSDR (4) GCM (3) SWASM (2)  KLM NUC NDSM (2) GWOTSM NMCAM NAVY "E" AFSM(2) EAW

Periods of UA/CONF:  NONE

NJP:  1
- 20080122:	Article 92 (Failure to obey an order)
	Article 111 (Drunken driving)
	Awarded: RIR FOP  Suspended:  FOP

SCM:  NONE

SPCM:  NONE

CC:  1

- 20080417:	Offense:  Driving, attempting to drive vehicle while impaired by alcohol.
	Sentence:  Jail for 20 days, unsupervised probation for 2 years, court cost $250.00.  Jail suspended.

Retention Warning Counseling:  3
              20071016 –VX-20 Commanding Officer’s alcohol policy.
             -20080303 – Forbidden to drink alcoholic beverages.
```          -20080421 – Completed Level I Substance Abuse Rehabilitation Training

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/To Representation:	☐	From/To Congress member:	☐

                    Other Documentation:	☒

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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, Articles 92 (Failure to obey an order) and 111 (Drunken driving)..

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

Applicant’s Issues

1.  Nondecisional issue.  Wants to reenlist in the Navy.
2.  Decisional issue.  Would like his Narrative Reason for Separation changed.
3.  Decisional issue.  Claims he was threatened not to elect an Admin Sep Board hearing. 
4.  Decisional issue.  Claims the offense punishment was disproportionate to the crime.
5.  Decisional issue.  Post Service
Decision

Date:  20091015	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain HONORABLE.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (SERIOUS OFFENSE).

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 Applicant’s record of service included three retention counseling warnings associated with alcohol abuse, one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an Order or regulation) and Article 111 (Drunk Driving), and one civilian conviction.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  During administrative separation processing, the Applicant waived his rights to consult with qualified counsel, submit a written statement, and request an administrative separation board.

Issue 1:  (Nondecisional) The Applicant states he would like to reenlist in the Navy to complete his career.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and 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 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.  Please refer to the Reenlistment/RE-code paragraph of the addendum page to this package.

Issue 2:  (Decisional) (Equity) RELIEF NOT WARRANTED.  The Applicant wants his narrative reason for separation changed from the current MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE to a “normal discharge” because he feels his conduct was not that egregious.  In January 2008, the Applicant was the subject of a NJP for drunk driving.  He was later discharged due to commission of a serious offense, which was a civilian conviction in April 2008 for attempting to drive/driving while impaired by alcohol.  He was sentenced to 20 days in jail, unsupervised probation for 2 years, and was charged court costs of $250.00.  His jail time was suspended.  The driving while impaired conviction is considered a serious offense under the UCMJ as a conviction could result in a Dishonorable Discharge or a Bad Conduct Discharge and up to 18 months confinement.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline – the Applicant’s offenses met this standard.  The Board noted that the Applicant signed two formal counseling notifications in which he acknowledges he is forbidden to consume alcoholic beverages and the consequences if he did—prior to the latter alcohol offense—documenting that he was fully aware of his commander’s zero tolerance policy for alcohol abuse.  While the Applicant acknowledges what he did was wrong, he states it was due to work place stress.  However, he does not produce any documentation to support his statement.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  The record clearly reflects his willful misconduct and demonstrated he was unfit for further service.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant, a senior petty office and at the time of his misconduct and a 16-year veteran of the US Navy, claims he was threatened by members of his chain of command on three separate occasions not to request an administrative separation board.  He added that he was informed he would lose his HONORABLE characterization of service if he elected a hearing before an administrative separation board.  The Board noted that although the Applicant’s command was separating him for Commission of a Serious Offense (civilian DUI), he was being recommended for an HONORABLE discharge.  Had he elected a hearing, there was a strong possibility, based on the Applicant’s record of service and seriousness of the civilian offense, that an administrative separation board would award a less desirable characterization of service than the Honorable.  Per phonecon on 13 October 2009 with CDR B -, the Executive Officer of VX-20 during this period (the Applicant’s former unit), it was discovered that the command did in fact encourage the Applicant not to request an administrative separation board in order that he may receive the highest characterization of discharge possible.  The Board opined that the command was not coercing the Applicant, but instead looking out for him as they were forced to separate him.  On 23 January 2008, he was offered the opportunity to consult with military counsel and appear before an administrative separation board—he waived his rights to both.  Aside from the Applicant’s personal statement, he provides no collaborative evidence that he was threatened by his supervisors.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED.  In the Applicant’s statement, he admits to making bad choices when he drinks, but he claims he has never done anything wrong in two enlistments; therefore, the punishment was disproportionate to the offense.  He states his misconduct was due to the pressure he was under since he was overworked and denied leave for a 2-year period.  However, a review of his entire record revealed alcohol-related NJPs and counseling entries from earlier enlistments.  Leave requests/authorization forms within his record show the Applicant took 11 days of Christmas leave December 2005, 12 days in June 2006, 17 days  in May 2007, 10 days in August 2007, 4 days in  February 2008, 15 days in  March 2008 and 11 days in April 2008.  The Applicant does not provide evidence he attempted to see the Chaplain or any superior in his chain of command to discuss the alleged work place stress.  Additionally, he does not provide any collaborative evidence, such as a denied leave request, which supports his statement he was refused leave for a 2-year period.

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.  Therefore, the awarded characterization of service shall remain HONORABLE and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.]

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 Association of Service Disable 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 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 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

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