Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700141

Original file (ND0700141.rtf) Auto-classification: Denied

ex-AR, USN
ND07-00141

Current Discharge and Applicant’s Request

Application Received: 20061108 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MILPERSMAN 1910-142

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Not an alcoholic.
                           2. Post service – going to school and employer letter of reference

Decision

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

Date: 20 070913 Location: Washington D.C. The Board found that

Discussion

Issue 1 ( ): The Applicant apparently believes that his dis c harge was based on his refusal to submit to alcohol screening and treatment. Although this may have been the action which forced the command to process the Applicant for administrative discharge he was processed properly for both misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure. T he summary of service clearly documents the Applicant s NJP for violations of UCMJ Article s 92 (failure to obey and order) and 107 (false official statement) . Each violation constitutes the “co mmission of a serious offense” which is punishable by a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a Courts Martial. The commission of a serious offense is the actual basis for discharge in this case. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.

Issue 2 ( ): The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the 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. Outstanding post-service conduct, 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, is considered. The Applicant provided one letter of recommendation from his former employer and a transcript from Central Michigan University as documentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of community service and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service .

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial cre dible evidence (including evidence submitted by the Applicant ) to rebut the presumption. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20040220 - 20040921     Active:
Period of Service Under Review:
Date of Enlistment: 20040922      Years Contracted : ; Extension:          Date of Discharge: 20050803
Length of Service : 00 Yrs 10 Mths 12 D ys                   Lost Time :
Education Level:         Age at Enlistment:       AFQT: 80          Highest Rank /Rate : AA
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A     OTA: N/A
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20050623:        CO's NJP -- Viol UCMJ Art. 92 – Failure to obey order or regulation – underage drinking; V iol Art. 107 – False Official Statement. Awarded – CCU for 30 days, FOP - $617.00 for 2 month s; 1 month suspended for 6 months; RIR (E-1).

20050623:        Retention Warning for (Violation of the UCMJ, Article 92-Failure to obey order or regulation (underage drinking, and possessing and consuming an alcoholic beverage in the BEQ), Article 107-False official statement, as evidenced by your appearance at Commanding Officer’s Nonjudicial punishment of 20050623. ).

2005072 6 :        Counseling/Warning: Substandard performance in the case of alcohol abuse and misconduct in the case of alcohol abuse. Applicant refused the screening and training/treatment offered through ATF.

Discharge Process

Date Notified:                                       20050726
Reason for Discharge:     -


Least Favorable Characterization:

Date Applicant Responded to Notification:                  20050726
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review                                WAIVED

Separation Authority (date):     COMMANDING OFFICER, NAVAL AVIATION SCHOOLS COMMAND ( 20050728 )
Reason for discharge directed:
Characterization directed:
Date Applicant Discharged:       20050803

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education:
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)

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 each violation of the UCMJ, Article 92 (failure to obey an order) and Article 107 (false official statement) .

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 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 : 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.

Employmen t / 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 | 2007_Navy | ND0700141

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