Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: chananuch.reed
Company: NCPB

Docket No. ND10-01200

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20100414
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630600
Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19951221 - 19960123  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19960124	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19970822	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   29 Day(s)
Education Level:  	AFQT:  84
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	

Periods of UA/CONF:  

NJP:  

- 19960523:	Article  (Disobey general order - underage drinking)
	Article  (Drunk and disorderly condct)
	Awarded:    Suspended:  

- 19960829:	Article  (False official pass)
	Awarded:    Suspended:  

- 19970419:	Article  (Wrongful use, possession, etc of a controlled substance - marijuana)
	Awarded:   RIR    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 19960523:	For underage consumption of alcohol and drunk and disorderly conduct while in “A” school training command.

- 19960829:	For false pass.

- 19970225:	For failure to pay just debts/indebtedness.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 12 December 1997, 
Article 3630605, 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, Articles 92, 112(a), and 134.

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility for Department of Veterans Affairs (VA) education benefits.   

2.	Decisional issues: The Applicant contends that his discharge was inequitable as he suffered from alcoholism and drug addiction at the time of discharge, was not diagnosed properly until six years later, and is now abstinent.  The Applicant contends that he had no other misconduct outside his alcohol-related incidents.  

Decision

Date:  20110609		Location:  Washington D.C.	Representation:  

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

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 NDRB 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 NDRB completed a thorough review of the circumstances leading to  discharge, and the discharge process, to ensure  discharge met the pertinent standards of both equity and propriety.  The Applicant enlisted in the United States Navy at age 19 for a four-year enlistment with a 24-month extension under a guarantee for training in the Advanced Electronics and computer field.  The Applicant enlisted with a waiver for pre-service drug use (marijuana).  As a function of the Applicant’s request for a waiver of his pre-service drug use, the Applicant was counseled and signed documents attesting to fully understanding the zero-tolerance U.S. Navy Drug and Alcohol Abuse Policy.

The Applicant’s service record includes three NAVPERS 1070/613 (Page 13) retention-counseling warnings and three  during his enlistment for s of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation), Article 134 (Drunk and disorderly conduct and False official pass), and Article 112(a) (Wrongful use, possession, etc of a controlled substance - marijuana).  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  Due to the Article 112a violation, processing for administrative separation was mandatory.  When notified of administrative separation processing using the  notification procedure, the Applicant elected to waive his rights to consult with a qualified counsel, to submit written matters to the Separation Authority, and to request an administrative board hearing.  The Applicant was notified of the proposed separation on 03 May 1997; he was specifically notified that he was being recommended for separation due to Misconduct (Commission of a Serious Offense), Misconduct (Pattern of Misconduct), and Misconduct (Drug Abuse) in accordance with Articles 1910-140, 142, and 146, respectively, of the Naval Military Personnel Manual (MILPERSMAN).  He acknowledged, in writing, his understanding that the least favorable characterization of service he could receive was Under Other Than Honorable Conditions.  On 12 May 1997, the Commanding Officer forwarded his recommendation for separation to the Separation Authority, recommending the Applicant be separated with an Under Other Than Honorable characterization of his service at discharge.  The Separation Authority reviewed the Command’s recommendation for separation and determined that the Applicant’s documented record of service established the minimum requirements for discharge.  The Separation Authority determined that separation in the Applicant’s case was proper and further, that the proposed characterization of service - Under Other Than Honorable Conditions - was warranted.  On 09 July 1997, the Separation Authority directed the Applicant be discharged for the reason as stated and that he receive an RE-4 re-enlistment code - not recommended for re-enlistment.

Nondecisional Issues.  The Applicant seeks an upgrade in the characterization of his service at discharge in order to gain eligibility for Department of Veterans Affairs (VA) education benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans educational benefits or facilitating employment opportunities.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

:  (Decisional Issue) ()  .  The Applicant contends that his discharge was inequitable as he suffered from alcoholism and drug addiction at the time of discharge, was not diagnosed properly until six years later, and is now abstinent.  The Applicant contends that he had no other misconduct outside his alcohol-related incidents.  
The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.

In accordance with the MILPERSMAN, a service member may be discharged involuntarily when their conduct or performance of duties meets one of the established reasons for separation.  In accordance with Article 1910-142 of the MILPERSMAN, service members may be separated based on the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court martial for the same or closely related offense.  The Applicant’s violation of Articles 92, 112(a), and 134 of the UCMJ warrant punitive discharge and confinement for up to two years, if adjudged at trial by court martial.  Additionally, the Applicant’s misconduct also meets the requirements for separation based on the establishment of a pattern of misconduct.  Moreover, the Applicant’s positive urine test results for the presence of marijuana in his system required mandatory processing for separation.  Based on a review of the evidence of record and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct did properly satisfy the requirements established by the MILPERSMAN for separation based on the commission of a serious offense, a pattern of misconduct, and drug abuse.  The Separation Authority found that a preponderance of the evidence supported separation for all three reasons for discharge.  As such, he directed the Applicant’s separation and further directed that the primary basis for discharge be Misconduct – Commission of a Serious Offense.  As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge.  Relief based on propriety, denied.    

While the Applicant may feel his alcoholism was the underlying cause of his misconduct, alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.  Following the Applicant’s misconduct for underage drinking and disorderly conduct, appropriately credentialed health care providers evaluated the Applicant and determined him to be alcohol abusive.  He was afforded attendance at an intensive outpatient treatment program for his alcohol abuse.  Continued misconduct led to the Applicant being dropped from his guaranteed training program and being assigned to the surface fleet as an unrated Sailor.  While deployed in the Mediterranean, the Applicant tested positive on a urinalysis test for illegal drugs; the Applicant was returned to his home port and was again screened for substance abuse.  In accordance with the MILPERSMAN, he was afforded attendance at a 30-day inpatient treatment program prior to effecting discharge.

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct including illegal drug use.  Additionally, the Applicant had been counseled regarding possible discharge if he failed to take corrective actions and comply with the expected standards of conduct of a Sailor in the United States Navy.  After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, reflected conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  The NDRB determined that an upgrade would be inappropriate; accordingly, relief is denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews 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 Disabled American 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 their 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 - Nonjudicial 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