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NAVY | DRB | 2006_Navy | ND0600989

Original file (ND0600989.rtf) Auto-classification: Denied

ex-MM3, USN
ND06-00989

Current Discharge and Applicant’s Request :

Application Received:                               20 060718
Narrative Reason for Separation:
Character of Service:
Discharge Authority :                                MILPERSMAN 1910-142
Last Duty Assignment/ Command at Discharge:       USS SCRANTON at norfolk, va

Applicant’s Request:
         Narrative Reason change to:               NO T REQUESTED
         Characterization chang e to:
         Review Requested :
Representation:

Decision:

Date of Decision:                                            20070608
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (SERIOUS OFFENSE).

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                20010829 – 20011023      COG
Active:                                    NONE
Period of Service Under Review :
Date of Enlistment:                                 200110 2 4
Years Contracted :                                   ;
Date of Discharge:                                  20050913
Length of Service:                                  03 Yrs 10 Mos 20 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:

Education Level:
Age at this Enlistment:
AFQT:                                                 51
Highest Rate/Rank:                                   MM3

Performance Evaluation Averages (number of marks):
Performance /Behavior/OTA :                          NOT FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, GOOD CONDUCT MEDAL, GWOT SERVICE MEDAL, GWOT EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBBON, NAVY "E" RIBBON (2)

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20010829:        Applicant granted Seaman Subfarer Program waiver for 2 alcohol related offenses.

20020910:        Applicant arrested by civilian authorities for driving under the influence of alcohol and driving on suspended licen s e .
         [Extracted from Virginia Courts Case Information, Norfolk General District/Traffic. ]

20020911:        Civil conviction, Norfolk General District/Traffic.
         Applicant found guilty of d riving under the influence ( BAC .08). Hearing on allegation of driving on suspended license continued until 20021010.
         Awarded: $350.00 fine, $67.00 costs, 90 days jail (suspended), suspension of operator licen s e.

20020924 :        NJP for violation(s) of UCMJ:
         Article 86: Failing to go or leaving place of duty on or about 20020907.
         Article 92: Failure to obey order or regulation by consuming alcohol while under age on or about 20020903.
         Award: Forfeiture of $682 for 2 months, reduction to E-1.
        No indication of appeal in the record.

20021010:        Civil conviction, Norfolk General District/Traffic.
         Applicant found guilty of driving without a license on 20020910.
         Awarded: $25.00 fine, $7.00 costs.

20030207:        Applicant completed Level I alcohol rehabilitation treatment.
         [Extracted from Commanding Officer, USS SCRANTON ltr dated 20030503.]

20030228:        Applicant arrested for underage possession o f alcohol.
         [Extracted from Commanding Officer, USS SCRANTON ltr dated 20030503.]

20030303:        NJP for underage possession of alcohol.
         [Extracted from Commanding Officer, USS SCRANTON ltr dated 20030503.]

20030503:        Commanding Officer, USS SCRANTON, recommended waiver for Applicant as substance abuse rehabilitation program treatment failure in order to attend Level III residential treatment.

20030516:        COMNAVPERSCOM granted waiver and directed retention warning for failure to successfully complete alcohol rehabilitation due to alcohol dependency/abuse (as appropriate)..

20030528:        Retention Warning: Advised of deficiency ( f ailure to successfully complete alcohol rehabilitation due to your alcohol dependency and abuse) . N otified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20030627:        Applicant completed residential alcohol rehabilitation treatment. Returned to duty.
         [Extracted from Record Check Form, ADMITS Processing Office.]

20050807:        Applicant involved in motor vehicle accident and arrested for driving under the influence of a lcohol (.18) in Grasonville, M D .
         [ Extracted from Queen Anne’s S heriff O ffice O ffense Report dated 20050824 . ]

20050818:        Applicant’s command requested copy of Queen Anne’s Sheriff Office Offense Report.

20050824:        Queen Anne’s Sheriff Office Offense Report prepared this date.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

Record not available.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                  NOTIFICATION PROCEDURE
Date Notified :                                        20050825
Narrative Reason(s):                                MISCONDUCT -
                                                      alcohol abuse rehabilitation failure
Least Favorable Characterization:

Date Applicant R esponded to N otification:                 20050825
Rights E lected at N otification :
Consult with Counsel
Administrative Board                       NOT APPLICABLE
Obtain Copies
Submit Statement(s)
GCMCA Review

Recommendation of Commanding Officer (date):     NOT APPLICABLE
Separation Authority (date):                        COMMANDING OFFICER, NAVAL SUBMARINE SUPPORT                                                            CENTER, NORFOLK ( 20050830 )
Narrative reason directed :                                   MISCONDUCT (SERIOUS OFFENSE)
Characterization of directed:                      GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:                         20050913

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service:
         Service/Medical Record :                            7
         Other Period of Service:
Related to Post-Service Period:
         Community Service :
         Education :
         Employment :
         Health /Medical :
         Character Statements:
         Criminal Records Checks:
         Additional Statements from Applicant:
Other Documentation      (Describe Below)                 3

Total Number of Pages:                            10

D escription of Other Documentation:
Charge Summary from District Court of Maryland

Applicant’s Issues as Summarized by the Board:
1. Desire to re-enlist.
2. Discharge inequitable because based on one isolated incident.
3. Verbally abused because of desire to leave submarine community.
4. Demanded court-martial instead of Captain’s Mast; was discharged instead.

Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Decisional Issues:

Issue 2 ( ). When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. T he Applicant’s assertion that his discharge was based on an “isolated incident” is not true . The Applicant’s record of service is replete with alcohol related misconduct for which significant command time and energy was spent in trying to assist the Applicant in overcoming his deficiency. The Applicant received a waiver for alcohol related offenses in order to enlist in the Navy, received a waiver for failing alcohol rehabilitation treatment while in the Navy, and was properly processed for administrative separation for a second alcohol rehabilitation treatment failure and misconduct. The Applicant’s overall service record is marred by a retention warning, 2 award s of nonjudicial punishment (NJP) for violations of the UCMJ, Articles 86 and 92, civil convictions for driving under the influence and driving without a license , 2 alcohol rehabilitation treatment failures, and another civil arrest for driving under the influence of alcohol. The Board advises the Applicant that driving under the influence of alcohol is also a violation Article 111of the UCMJ, a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted. Relief denied.

Issue 3 ( ). There is no evidence in the record, and Applicant submits none, to support the Applicant’s allegation of having been verbally abused. Nor does the Applicant provide any evidence as to how, even if such alleged abuse occurred, it was related to his discharge. The government enjoys a presumption of regularity in the conduct of its affairs, and the Applicant’s uncorroborated assertions are not sufficient to raise a challenge to that presumption. Further, the evidence of record clearly supports the reason for, and appropriateness of, the Applicant’s discharge. Relief denied.

Issue 4 ( ). Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The Applicant’s command was not obligated to prefer a charge against him and refer that charge to a court-martial simply because the Applicant exercised his right to refuse nonjudicial punishment. Rather, the command chose to process the Applicant for discharge. The Board specifically determined that there was sufficient evidence in the record to support the conclusion that both reasons for processing (Misconduct – commission of a serious offense, and Alcohol Abuse Rehabilitation Failure) were supported by preponderance of the evidence at the time of discharge . In addition, the Board advises the Applicant that his own document submission to the Board demonstrates that the Applicant was ultimately convicted civil authorities of the offense. Relief denied.

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

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, Article 92 (Failure to obey order or regulation) , and Article 111, Drunken or reckless operation of vehicle, aircraft, or vessel .

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 . 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, provi ded 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 grante d 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 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, 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 “PTSD . ” 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 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.

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

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NAVY | DRB | 2006_Navy | ND0600989

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