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NAVY | DRB | 2008_Navy | ND0800597
Original file (ND0800597.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20080229
Characterization of Service Received:
Narrative Reason for Discharge: (SERIOUS OFFENSE)
Authority for Discharge: MILPERSMAN

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20030407 - 20030520              Active:
Period of Service Under Review:
 Date of Enlistment: 20030521      Period of enlistment : Years Extension          Date of Discharge: 20060830
Length of Service : Yrs Mths 10 D ys      Education Level:         Age at Enlistment:       AFQT: 41
Highest Rank /Rate : AA     Evaluation marks: Performance: NFIR       Behavior: NFIR    OTA: NFIR
Awards and Decorations ( per DD 214): (3)

Periods of UA : 20040507-20040518 (12 days) ; 20040523-20040601 (10 days) ; 20040806-20040811 (6 days) ;
20040817 (1 day) ; 20040819-20040830 ( 11 days) ; 20050527-20050619 (23 days) ; 20051024 (1 day) ;
 20060208-20060209 ( 2 days) ; 20060315 (1 day) ; 20060517 ( 1 day)
Periods of CONF: 20040910-200 40 930 ( 20 days)

NJPs :    
         20040610 : Art(s) 86 ( Absence without leave) 2-specs Awarded - Susp -
         20050629 : Art(s) Awarded - Susp -
         20060815 : Art(s) Awarded - Susp -

S CMs :   
         20040910 : Art(s) 86 (4 specs) (Absence without leave ) Sentence - .
Retention Warnings:
         20040610 : For absence without leave .

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Applicant claims the Navy did not provide counseling and aftercare.
2. Post service – Equity .

Decision

Date: 20 08 0523             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT ( COMMISSION OF A SERIOUS OFFENSE) .
Discussion

 ( ) : The Applicant claims the Navy did not provide alcohol counseling or alcohol aftercare treatment . During Board reviews t he government is presumed to conduct its affairs with regularity unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. A review of the Applicant ’ s service record indicates he had a history of unauthorized absences throughout his 3-years of service . The member ’ s service record does not reflect any alcohol related incidents other than the member ’ s last infraction which violated the UCMJ, Art 111 and was the final catalyst for his discharge. There is no documentation in the member ’ s service record reflecting alcohol was a contribut ing factor to his previous e xcessive unauthorized absences or interfered with his work in any manner. Standard Naval d ischarge procedures would have require d a determination of alcohol dependency prior to an assignment for alcohol aftercare treatment . However, the service and discharge records make no mention of an alcohol problem or alcohol dependency and therefore, the Board assumes the command followed proper protocol and it was determined the member was not alcohol dependent and aftercare treatment was not r equired .

Based on all available records and documentation provided by the Applicant, t he Board presumes the command conducted the discharge proceedings in accordance with standard procedures and available service records support this . The Applicant ’ s statements alone do not overcome the government ’ s presump tion of regularity in this case. Therefore, the Board determined an upgrade was not warranted.

( ): The Applicant claims he is on the right track in life and is using the skill s he learned in the Navy to his advantage. The Applicant ’ s discharge characterization accurately reflects his service to this country. Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question. No impropriety or inequity occurred during the Applicant ’ s enlistment. Additionally, 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. However, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post- service conduct and behavior as a reason to upgrade a less than Honorable discharge. The Applicant did not provide any documentation for the Board to review in connection with post-service conduct. Evidence of continuing educational pursuits, employment record, documentation of community service and certification of non-involvement with civil authorities, a re examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. The Applicant ’ s statements concerning post-service conduct, without documented evidence, were not found to mitigate the misconduct, which precipitated the discharge. The Board determined an upgrade was not warranted.

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




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 violation of the UCMJ, Article 111 .

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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