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NAVY | DRB | 2007_Navy | ND0700785
Original file (ND0700785.rtf) Auto-classification: Denied
ex-SN, USN
ND07-00785
Current Discharge and Applicant’s Request
Application Received: 20070522   Characterization Received:
Narrative Reason: MISCONDUCT DUE TO A PATTERN OF MISCONDUCT      Authority: MILPERSMAN 1910-140

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Desire VA medical and education benefits (GI Bill)
                           2. Misconduct due to alcoholism
                           3. Post service conduct

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Date: 20 071213             Location: Washington D.C         R epresentation :

Discussion

 Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ). The Applicant contends that his problems in the Navy can be attributed to his alcoholism. The Board noted that much of the Applicant’s misconduct was alcohol related, but also noted that his unit made a significant effort to identify, treat, and support the Applicant in dealing with his alcohol use. The record clearly reflects the Applicant’s 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.

Issue 3 ( ). The Board discovered no impropriety or inequity after a review of Applicant’s case. 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 could 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. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of 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

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214 :

         “ PATTERN OF MISCONDUCT ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19981117 - 19981209              Active:         
Period of Service Under Review:
 Date of Enlistment: 19981210               Years Contracted : ; Extension:   Date of Discharge: 19991118
Length of Service : 00 Yrs 11 Mths 09 D ys                   Lost Time : Days UA: 02 Days Confine d : At least 71
Education Level:                  Age at Enlistment:       AFQT: 84                   Highest Rank /Rate : SN
Evaluation marks (# of occasions):       NOT FOUND IN RECORD      Awards and Decorations ( per DD 214): NONE

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

 19990409:        Applicant referred by Emergency Room to Alcohol Rehabilitation Department for substance abuse evaluation.

 19990426:        Applicant ordered to report to DAPA on 19990430 for medical evaluation.

 19990430 :        Medical Record: Reason for visit: Substance abuse evaluation.
         Diagnosis: Based on reported incident and recorded information, does not appear to meet DSM-IV diagnostic criteria for alcohol dependence or abuse at this time.
         Recommendation: Impact.

19990526:        NJP -- Viol UCMJ Art. 112 – 19990520, drunk on duty; Art 134 – 19990520, drunk and disorderly; Art 86 (3 specs) – UA 19990508 – 19990510 (1 day), 19990517, 19990518 – 19990520 (1 day); and 134 – 19990520, $32.99 bad check to NEX.
         Awarded - FOP ($$558.00) for (2 months); RIR (E-2), susp 6 months; Restr for (45 days), 15 days susp 6 months; Extra duties (45 days), 15 days susp 6 months.

19990526:        Retention Warning for violations of Articles 86(x3), 112 (drunk on duty) and 134 (drunk and disorderly) and uttering bad check.

 19990711:        Applicant to pretrial confinement.

19990715:        Applicant released from pretrial confinement. To pretrial restriction.

 19990716:        Applicant ordered to report to DAPA on 19990730 for medical evaluation.

 19990803:        Applicant ordered to report to DAPA on 19990820 for medical evaluation.

 19990820:        Medical Record: Reason for visit: Substance abuse evaluation, referral from command DAPA.
         Diagnosis: Appears to meet 1 of 4 diagnostic criteria for ETOH abuse: recurrent ETOH related legal problems.
         Recommendation: Outpatient treatment .

 19990823:        Applicant to pretrial confinement.

 19990823:        Charges preferred against Applicant.

19990908:        Applicant offered alcohol rehabilitation treatment.

19990923:        Applicant accepted alcohol rehabilitation treatment.
19991026:        Applicant submitted pretrial agreement (PTA) offering to plead guilty of some charges and waive administrative discharge board in exchange for dismissal of charges to which pled not guilty and sentence limitation.

19991027:        Convening Authority accepted PTA.
19991027:        Applicant submitted request for deferment of confinement for 5 days due to appointment with Philadelphia Family Court Judge’s Representative on 19991029 to resolve financial and custody issues relating to his six-year old son.

 19991028 :        S P CM -- Viol UCMJ Art. 86 – UA 19990626 – 19990711; 91 (2 specs) – 19990624, disobey order and 19990624, disrespectful language to CPO; 95 (2 specs) - 19990813 and 19990821, resist apprehension ; 117 – 19990813, use provoking language; 134 (3 specs) – 19990625, drunk and disorderly, 19990813 and 19990821, disorderly conduct .
         Awarded - RIR ( E-1 ); Confinement ( 90 days) .

19991028:        Convening Authority approved deferment of confinement from 19991028 – 19991101 , and approved Applicant’s leave from 1300, 19991028 – 1600, 19991101 .

19991101:        Applicant returned from leave. Informed command that he had not attended Family Court Judge’s Representative hearing on 19991029 due to lack of money and transportation to Philadelphia. Applicant remained in Chicago and got married.
Discharge Process

 Date Notified:                                       19991105
Reason for Discharge:     -
         -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19991105
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ( 19991105 )
          Administrative Board                        [NDRB note: Applicant wrote “N/A” in the “ELECT” box]

Commanding Officer Recommendation (date):        ( 19991112 )
Separation Authority (date):     CO, NAVAL TRAINING CENTER, GREAT LAKES ( 19991117 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19991118 (in abstentia)

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 18, effective 12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 91, Insubordinate conduct toward warrant officer; 95 , Resistance, flight, breach of arrest, and escape ; 112 , Drunk on duty ; and 134, Check, worthless, making and uttering – by dishonorably failing to maintain funds.


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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