Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700663

Original file (ND0700663.rtf) Auto-classification: Denied

ex-GM3, USN
ND07-00663

Current Discharge and Applicant’s Request

Application Received: 20070424 Characterization Received:

Narrative Reason: MISCONDUCT-CIVIL CONVICTION Authority: MILPERSMAN 1910-144

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Misinformed on the impact of a general discharge on his GI Bill
                           2. Good perform er with the exception of his alcohol re lated incidents

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT -CIVIL CONVICTION .

Date: 20 071220             Location: Washington D.C         R epresentation :

Discussion

Issue 1. The Applicant contends that he was misinformed that his discharge would not affect his GI Bill. The Applicant did not submit any evidence nor did his record contain any evidence to support this contention. Furthermore, this is which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum for additional information regarding Employment/Educational Opportunities .

Issue 2 ( ). The Applicant also contends that he should receive an upgrade because he was a good performer with the exception of his alcohol related incidents , and that this warrants an honorable characterization. When the service of a member of the Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A discharge with a characterization of general (under honorable conditions) is warranted when there are significant negative aspects of a member's conduct or performance shown in the member's military record. T he Applicant’s service record documents show the following:
o        a retention warning on 20021029 for VUCMJ, Art 92, possessing alcohol while under the age of 21 ;
o        a retention warning on 20050706, VUCMJ Art 92, failure to obey lawful order and Art 134, improper cohabitation of workspace; and
o        a civil conviction from the Commonwealth of Virginia for driving under the influence.
The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects h is wi llful failure to meet the requirements of h is contract with the Navy and falls far short of that required for an upgrade of his characterization of service.

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 tha t

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20010912 - 20010927              Active:
Period of Service Under Review:
Date of Enlistment: 20010928      Years Contracted : ; Extension: Date of Discharge: 20060518
Length of Service : 04 Yrs 07 Mths 21 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 56          Highest Rank /Rate : GM2
Evaluation marks (# of occasions):       Performance: 4.0 ( 6 )       Behavior: 3.0 ( 6 )                  OTA: 3.48
Awards and Decorations ( per DD 214): NDSM, NMCOSR, GCM, SSDR

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

20021029:        Retention Warning for on 20021022, you appeared at Executive Officer’s Inquiry for violation of the UCMJ, Article 92-failure to obey a lawful order by possessing alcohol while under the age of 21 years. XO elected not to send your case to the Commanding Officer for disposition, but has directed that you be warned against any further misconduct .

20050706:        Retention Warning for violation UCMJ, Article 92, failure to obey order or regulation, violation of UCMJ Article 134, violation of improper cohabitation of a work space.

20060112:        Civil Conviction: [Commonwealth of Virginia] for driving under the influence.
Sentence: 12 months in jail (suspended), suspension of operator license, and fined $250.00 plus court cost.

2006 0216          Drug and Alcohol Report: Applicant screened by a Navy D rug and A lcohol C ounselor 20060130 and a Licensed Independent Practitioner on 20060206 ; diagnosed as Alcohol Abuse r .

Discharge Process

Date Notified:                                       20060315
Reason for Discharge:     -
         ALCOHOL REHABILITATION FAILURE
Least Favorable Characterization:

Date Applicant Responded to Notification:                  20060329
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review

Commanding Officer Recommendation (date):        ( 20060511 )
Separation Authority (date):     COMMANDER, NA VAL PERSON N EL DEVELOPMENT COMMAND ( 20060517 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20060518

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 .

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 | ND0700663

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