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NAVY | DRB | 2007_Navy | ND0700635
Original file (ND0700635.rtf) Auto-classification: Denied
ex-MM2, USN
ND07-00635
Current Discharge and Applicant’s Request
Application Received: 20070417   Characterization Received:
Narrative Reason: MISCONDUCT                       Authority: MILPERSMAN 1910-144

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:      1. Post-service conduct

Decision

 By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (CIVIL CONVICTION) .
Date: 20 071129                      Location: Washington D.C         R epresentation :

Discussion

Issue 1 ( ). The Applicant provided evidence of post-service alcohol rehabilitation treatment, and desires to “continue [his] life with an honorable discharge.” The NDRB commends the Applicant on his efforts towards sobriety; 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 civilian life subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization 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. The Applicant’s record amply demonstrates his repeated alcohol related misconduct for which discharge was appropriate. The Board noted that the Applicant’s discharge is general (under honorable conditions), which is appropriate when a member’s service has been honest and faithful, but significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. 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 found not sufficient to mitigate the misconduct which precipitated the discharge.

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that


Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19991230 - 20000912              Active:          20000913 - 20021024
Period of Service Under Review:
 Date of Enlistment: 20021025                        Years Contracted :                          Date of Discharge: 20050901
Length of Service: 02 Yrs 10 Mths 08 D ys                  Lost Time: Days UA: Days Confined:
Education Level:                  Age at Enlistment:                AFQT: 85          Highest Rank/Rate: MM2
Evaluation marks (# of occasions):       Performance: 3.8 ( 5 )      Behavior: 3.0 ( 5 )                 OTA: 3.34
Awards and Decorations (per DD 214): GCM, SSDR, GWOTEM, GWOTSM, NAVY "E", NDSM, EnlSurfWarSpec

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

 20021025:        Applicant reenlisted for 6 years.

20040922:        Arrested by Virginia Beach, VA civil authorities for driving under the influence (DUI).

20041021:        Medical Record: Reason for visit: Referred by previous command for a DUI, which occurred 20040527.
         Diagnosis: R/O alcohol abuse. Narcissistic traits.
         Recommendation: IMPACT .5 Level Treatment.

20041204:        Applicant completed IMPACT. [Extracted from Commanding Officer’s letter dated 20050929.]

20050515:        Arrested by Virginia Beach, VA civil authorities for DUI and having open container.

20050516:        Drug and Alcohol Abuse Report: Alcohol abuse, ashore off duty. Civilian police - law enforcement. Commanding Officer recommended processing for separation and command level rehabilitation. Comments: Applicant received his third DUI since March 2004. Applicant completed IMPACT on 20041204. Processing for administrative separation. Final disposition DAAR.

20050517:        Civil Conviction: Virginia Beach General District Court, Traffic, Virginia Beach, Virginia for DUI on 20040922.
         Sentence: Jail for 60 days (55 days suspended), license suspended 1 year, fined $500.00 plus $226.00 court cost, must attend VASAP.

20050901:        Civil Conviction: Virginia Beach General District Court, Traffic, Virginia Beach, Virginia for DUI and open container.
         Sentence: Jail for 12 months ( 11 months suspended), license suspended 1 year, fine $500.00 plus $206.00 court costs, and required to attend Virginia Alcohol Safety Action Program.
Discharge Process

 Date Notified:                                       20050809
Reason for Discharge:    -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                 20050809
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      
         GCMCA review                               


Commanding Officer Recommendation (date):       
Separation Authority (date):     CO, USS HARRY S. TRUMAN (CVN 75) (date not found in record)
Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20050901


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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until Present, Article 1910-144 , Separation by Reason of Misconduct - Civilian Conviction.

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, 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 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, provided 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 granted 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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