Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: lois.rojas
Company: NCPB

Docket No. ND11-00175

ex-QMSA, USN

Current Discharge and Applicant’s Request

Application Received: 20101027
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)	20010330 - 20010607  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010608	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20041222	Highest Rank/Rate:  QMSN
Length of Service:   Years     Months   14 Days
Education Level:  (GED)	AFQT:  43
Evaluation Marks:	Performance:  3.0 (5)	Behavior:  1.8 (5)	OTA:  2.73

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

Periods of UA/CONF:  

NJP:  3

- 20030210:	Article 134 (Disorderly conduct, drunkenness)
	Awarded: FOP RESTR EPD   Suspended:  

- 20030821:	Article 86 (Absence without leave)
	Article 92 (Failure to obey order or regulation)
	Awarded: NFIR   Suspended:  NFIR
	[Extracted from Evaluation and Counseling Report, ending date 20030821]

- 20040319:	NFIR [Extracted from NAVPERS 1070/604 (Awards)]

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE 

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.  Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION.

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.

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

Applicant’s Issues

1.	Applicant seeks an RE code and discharge upgrade to re-enlist in the U.S. Armed Forces.
2.	Applicant contends his honorable service outweighs his misconduct.
3.	Applicant believes his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date:  20120223		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 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.  Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available records to determine whether  discharge met the pertinent standards of equity and propriety.
The Applicant identified two decisional issues for the Board’s consideration.  The Applicant’s record of service did not include any NAVPERS 1070/613 retention warnings, but did reflect three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation), and Article 134 (Disorderly conduct, drunkenness, on liberty).  The record also revealed the Applicant admitted to and/or received enlistment waivers for pre-service civil offenses to include driving under the influence (Apr 1999), driving while intoxicated (May 2000), and using marijuana two times (Jun 1996) prior to entering the Navy.  The Applicant’s Evaluation and Counseling Reports indicate he was admitted to a Level III in-patient substance abuse (alcohol) treatment program between Jul-Sep 2002.  Upon completion of rehabilitation and return to duties aboard the USS Cape Saint George, it was noted that the Applicant’s attitude, military bearing, and work ethic had significantly improved.  The Applicant was subsequently transferred to the USS Shreveport on or about 31 Oct 2002.  Although the Applicant’s service records are incomplete, the Board noted that the Applicant was determined to be an alcohol rehabilitation program treatment failure (due to another alcohol-related incident or noncompliance with mandated aftercare requirements).  An alcohol rehabilitation program treatment failure requires mandatory processing for administrative discharge per the Naval Military Personnel Manual (MILPERSMAN).  Since the Applicant’s service records are incomplete, the NDRB did not have the Applicant’s administrative separation package available to determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  The Applicant was separated from the Navy on 22 Dec 2004 with a General (Under Honorable Conditions) discharge due to Alcohol Rehabilitation Failure. 

:  (Nondecisional) The Applicant seeks an RE code and discharge upgrade to re-enlist in the U.S. Armed Forces.  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 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.

:  (Decisional) ()  .  The Applicant contends his honorable service outweighs his misconduct.  The Board conducted an exhaustive review of the Applicant’s service records that contained the following Evaluation and Counseling Reports: [14 Oct 2001-15 Jul 2002] “(The Applicant’s) overall performance has been disappointing.  His performance on liberty has vastly overshadowed a decent work ethic…has been counseled on several occasions regarding his personal behavior while ashore.  His incidents on liberty were referred to the command DAPA for Level III treatment and anger management classes…Fails to understand the Navy’s Core Values.  Convicted for shoplifting and disorderly conduct 

while on liberty.  Does not understand how his actions have affected the division, department, and ship both underway and in port.  Completes assigned tasks on time and requires minimal supervision.  (The Applicant) has the potential required to become a good Sailor and quartermaster.  With successful completion of Level III treatment, anger management classes, following the advice and leadership of his chain of command, he will possess all the tools required to become a successful Sailor”;  [31 Oct 2002-15 Jul 2003] “(The Applicant) was convicted of a NJP and DRB this reporting period…with more experience, stronger focus on his career goals and better use of judgment (the Applicant) would be a superb Sailor and have unlimited potential”;  [16 Jul 2003-21 Aug 2003] “This special evaluation is being submitted due to (the Applicant’s) misconduct and performance.  21 Aug 2003 Commanding Officer NJP (Violation of UCMJ Art 86 and 92); 10 Feb 2003 Commanding Officer NJP (Violation of UCMJ Art 134).  (The Applicant’s) performance is inconsistent.  He sometimes shows up for work late with multiple excuses.  He is capable of doing outstanding work, and with improvement and consistency, he has the potential to do very well in the Navy.”  In an evaluation report that covered the period 22 Aug-16 Sep 2003, the reporting official notes the Applicant’s significant improvement in work ethic, performance, and conduct.

Although a review of the Applicant’s record reveals little details regarding his documented misconduct that resulted in three NJPs, a review of his Evaluation and Counseling Report markings and reporting official comments show a pattern of inconsistent performance and conduct, to include a Behavior trait average of 1.8 over five reporting periods.  Per the MILPERSMAN, a Sailor may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record.  Based on these evaluation marks and the three NJPs within this enlistment period, the Board determined that the Applicant’s General (Under Honorable Conditions) characterization of service upon discharge was warranted.  Accordingly, the Board found this issue did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant believes his post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’s character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  The Applicant provided a personal statement and documentation regarding successful completion of VAMC rehabilitation treatment as evidence of post-service accomplishments.  Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review.  He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  Without any additional post-service documentary evidence available for review, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions).  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record entries, 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 for additional information.

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