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NAVY | DRB | 2006_Navy | ND0601087
Original file (ND0601087.rtf) Auto-classification: Denied

ex-HT3, USN
ND06-01087

 Current Discharge and Applicant’s Request :

Application Received:                               20 060815      
Narrative Reason for Separation:                          
Character of Service:                               
Discharge Authority :                                MILPERSMAN 1910-14 2
Last Duty Assignment/ Command at Discharge:       NAVAL STATION NORFOLK, VA

Applicant’s Request:
          Narrative Reason change to:                NOT APPLICABLE
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             


Decision:

Date of Decision:                                             20 070727
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 GENERAL (UNDER HONORABLE CONDITIONS)   
By a vote of the Reason for Discharge shall

Applicant’s Issues as Summarized by the Board:
 1. Equity – Benefits
2. Equity – Post- Service
3. Equity – Youth and Immaturity
4. Equity – In Service Conduct


Summary of Service :

Prior Service:
 Inactive: USNR (DEP)                                19990219 - 19990630
Active:                                                  
Period of Service Under Review :
Date of Enlistment:                                 19990 701
Years Contracted :                                   ;      
Date of Discharge:                                  20020509
Length of Service:                                 
Active:                                      02 Yrs 10 Mos 09 Days Does not exclude lost time, if any.
Inactive:                                            00 YRS 0 0 MOS 00 DAYS
 Time Lost During This Period:                     
Days Unauthorized Absence:                         NONE
Days Confinement:                                   NONE

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 35
Highest Rate/Rank:                                   HT3

Performance Evaluation Averages (number of marks):
 Performance :                                         NOT FOUND IN RECORD
Behavior :                                            NOT FOUND IN RECORD
OTA :                                                   NOT FOUND IN RECORD
Extracted from:
Applicant’s Supporting Documents Other:      

Awards and Decorations (as listed on the DD Form 214):
ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ENLISTED SURFACE WARFARE SPECIALIST, ENLISTED AVIATION WARFARE SPECIALIST, NATIONAL DEFENSE SERVICE MEDAL.





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

20000419:        Civil Conviction: General District Court, Traffic Division, Chesapeake, Virginia for (1) reckless driving (79/55) and ( 2) no city sticker.
         Sentence: (1) $54.00 fine plus court costs and (2) dismissed. [Extracted from CO’s letter of 20020515.]

20000721:        Civil Conviction: General District Court, Traffic Division, Virginia Beach, Virginia for (1) reckless driving with accident and ( 2) no operators license .
          Sentence: (1) Amended to improper driving, $5 0 .00 fine plus court costs , 30 days in jail (28 days suspended) and 25 hours community service and (2) $80.00 court costs and one year unsupervised probation . [Extracted from CO’s letter of 20020515.]

20001031:        Civil Conviction: New Craven County Court, Newbern, North Carolina for (1) driving under the influence and (2) reckless driving.
          Sentence: (1) $ 1 4 0 .00 fine and three years unsupervised probation and (2) dismissed. [Extracted from CO’s letter of 20020515.]

20020110:        Civil Conviction: General District Court, Traffic Division, Norfolk, Virginia for (1) cracked windshield and (2) driving with suspended license.
         Sentence: (1) $30.00 fine plus court costs, (2) $150.00 fine plus court costs license suspended for 90days.
20000206:        Medical Evaluation: Applicant screened by a Navy drug and alcohol counselor, and a Licensed Independent Practi ti oner on 20020211 and diagnosed with alcohol dependence and was reco m mended for Level III treatment. [Extracted from CO’s letter of 20020515.]

20020403:        Applicant discharged from the formal Level III Alcohol Rehabilitation program as a result of non-compliance with program rules and regulation. [Extracted from CO’s letter of 20020515.]

 2002041 2 :        Retention Warning: Advised of deficiency ( Failure to conform to local, state, federal laws, military rules and regulations which resulted in one civilian conviction during your current enlistment. On 20020110, you were tried and found guilty of having a cracked windshield and driving with a suspended license. You were fined $30.00 plus court costs, $150.00 plus court cost, and your license was suspended for 90 days. The civilian conviction was recorded and an Administrative Remarks, NAVPERS 1070/613 ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.


Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                 
Date Notified :                                        20020418
Reason for Discharge                               
         DUE TO                             
         DUE TO                              
         DUE TO                              
Least Favorable Characterization:                         
Record Supports Narrative Reason :                         
Date Applicant R esponded to N otification:                 20020419
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement(s) (date)                               
GCMCA Review                               
                                   
Recommendation of Commanding Officer (date):          
Discharge directed by (date):                       COMMANDING OFFICER, NAVAL STATION NORFOLK 20020422
Narrative reason directed :                                  
Characterization directed:                                  GENERAL (UNDER HONORABLE CONDITIONS)
D ate Applicant Discharged:                         20020509



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 Under Review :
          Service/Medical Record :                              1
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           0
         Employment :                                          1
         Health /Medical :                                       0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 1

Total Number of Pages:                              3

D escription of Other Documentation:
        Letter of Completion of Alcohol Education program



Discussion

 Applicant’s Issues as Summarized by the Board:
1. Equity – Benefits
 2 . Equity – Post- S ervice
3 . Equity – Youth and Immaturity
4 . Equity – In S ervice Conduct

Regarding the Applicant’s Issue-1, that issue is one which cannot form the basis of relief for the Applicant. The Applicant is directed to the Addendum regarding Employment/ Educational Opportunities.

 Issue 2 ( Equity). The Applicant provides documentation of post-service conduct in support of his request for upgrade. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the re - characterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient to mitigate the conduct, which precipitated the discharge. Relief denied.

Issue 3 (Equity). The Applicant contends that his problems in the Navy can be attributed to his youth and immaturity. While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied

Issue 4 (Equity). The Applicant requests upgrade of his service in part based on his performance while in service. 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. The Applicant’s service was marred by a retention warning, four civilian convictions for reckless driving, driving without an operator’s license, driving under the influence, and driving with a suspended license . Driving under the Influence if punished under UCMJ Article 111 (Drunken or Reckless Driving) is considered a serious offense for which a punitive discharge is authorized. The Applicant was also dropped from Level III Alcohol Rehabilitation Program for non-compliance with rules. 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 denied .
There is a presumption of regularity in the conduct of Government affairs. This presumption will be applied in any review 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 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142 [formerly 3630605]. 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 111 (Drunk or Reckless Operation of a Vehicle) .

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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