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NAVY | DRB | 2007_Navy | ND0700253
Original file (ND0700253.rtf) Auto-classification: Denied
ex-PNSA, USN
ND07-00253
Current Discharge and Applicant’s Request
Application Received: 20061221   Characterization Received:
Narrative Reason: MISCONDUCT COMMISSION OF A SERIOUS OFFENSE Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Discharge inequitable because of Applicant’s addiction to alcohol.
                           2. Post Service

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT-COMMISION OF A SERIOUS OFFENSE .

Date: 20 070927 Location:         Washington D.C. The Board found that

Discussion

 Issue 1: ( ). The Applicant contends that his problems were attributed to his abuse of alcohol . While he may feel that this 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. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. An under other than honorable conditions 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 nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ) Article 86 (Failure to go to an appointed place of duty), Article 116 (Breach of the Peace), Article 128 (Assault) , and Article 134 (Drunk and Disorder). A dditionally, the Applicant spent a period of nearly seven months in a Deserter status , terminated by apprehension, in which the Navy declined to prosecute. Violations of UCMJ Articles 86 and 128 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.

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, good conduct, or favorable endorsements 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 documentation of earning a doctorate degree , a register drug and alcohol counselor certification, and enrollment in two outpatient clinic programs. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence documentation 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 circumstances that resulted in the characterization of discharge.


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19900321 - 19900603              Active:         
Period of Service Under Review:
 Date of Enlistment: 19900604      Years Contracted : ; Extension:                   Date of Discharge: 19920416
Length of Service : 01 Yrs 00 Mths 12 D ys          Lost Time : Days 271 : Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 87          Highest Rank /Rate : PNSN
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A              OTA: N/A
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, EXPERT PISTOL SHOT MEDAL

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

 19910328:        Medical Officer’s evaluation determined Applicant to be alcohol dependent and recommended VA In-patient treatment prior to separation. Recommended Applicant be separated from naval service.

 19910508 :        CO's NJP -- Viol UCMJ Art. 134 – (3 specs), Spec 1: Drunk and disorder on 19910428; Spec 2: Drunk and disorderly on 19910310; Spec 3: Communicate a threat to a Petty Officer on 19910420; viol UCMJ Art. 128 - ( 3 specs), Spec 1: Simple assault by kicking a FN on this back on 19910405; Spec 2: Simple assault by striking a FN with his fist on 19910405, Spec 3: Aggravated assault by striking a FN on the head with a PR-24 Police Baton causing a deep cut above his left eye on 19910310; viol UCMJ Art. 116 – (2 specs), Spec 1: Breach of the peace on 19910405 by engaging in a fist fight with a FN on 19910405, Spec 2: Breach of the peace on 19910310 by engaging in a physical confrontation with a FN on 19910310; viol UCMJ Art. 128 – (2 specs), Spec 1: Destruction of military property, to wit: a table and chair of a value of $200.00 on 19910310, Spec 2: Destruction of military property, to wit: a bed frame of a value about of $79.27; viol UCMJ Art. 86: (5 specs), Failure to go to appointed place of duty, to wit: Restricted Men’s Muster, on 0630, 19910505, 1130, 19910505, 1530, 19910505, 1930, 19910505, and 2200, 19910505 . Awarded - FOP ( $ 422.00 ) for ( 2 months); RIR ( E-2 ); Restr for ( 60d ays) suspended for 6 months .
19910517:        Suspended punishment awarded at CO’s NJP on 19910508 vacated.

 19910528:        Applicant UA f rom TPU Philadelphia PA at 0745 while awaiting administrative separation.

 19920128:        Applicant declared a deserter.
19920223:        Applicant apprehended by civil authorities in Green Bay, WI. Returned to military control at deserter information point Washington DC 0135, 29920223. Transferred to TPU Philadelphia and retained onboard pending DISPACT/DISPO.
19920330:        Naval Station, Philadelphia declines to prosecute applicant for the period of unauthorized absence from 19910528 to 19920223. The period of unauthorized absence will continue to be considered lost time for administrative purposes and will serve as the basis for the denial of remuneration. Applicant is to be discharged in accordance with BUPERS WASHINGTON DC msg 171841Z JUN 91. Applicant is not recommended for reenlistment.

Discharge Process

 Date Notified:                                       19910514
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19910515
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):        ( 19910603 )
Separation Authority (date):     BUPERS WASHINGTON DC ( 19910617 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19920416

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) Certificate of Birth, Social Security Card, Drug Counselor Certificate, Drug Counselor Approval Letter, Resume, Letters from United Amerindian Center, Inc (4), Volunteer Tutor Training Certificate

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, 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 86 and 128.




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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