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NAVY | DRB | 2008_Navy | ND0801139
Original file (ND0801139.rtf) Auto-classification: Denied

ex-OSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080430
Characterization of Service Received:
Narrative Reason for Discharge: - PATTERN OF MISCONDUCT
Authority for Discharge: MILPERSMAN 3630600 (pattern of misconduct)

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19890929 - 19891017              Active:

Period of Service Under Review:
Date of Enlistment: 19891018      Period of E nlistment : Years Extension   Date of Discharge: 19930503
Length of Service : Y ear s M onth s 16 D a ys        Education Level:         Age at Enlistment:       AFQT: 68
Highest Rank /Rate :       OS3       Evaluation M arks: Performance:    3.5 ( 4 )   Behavior: 3.1 ( 4 )         OTA: 3 . 40
Awards and Decorations ( per DD 214):      Rifle Pistol (3) (2)

Periods of UA /C ONF :

NJPs :

19911018 :         Art icle 86 (Fail to go to Divisional Quarters).
         Article 92 (2 specifications) (Wrongfully possessing an alcoholic beverage in a naval vehicle and on board a naval vessel).
         Article 134 (2 specifications)
         Specification 1: (Drunk and disorderly).
         Specification 2: (Incapacitated for the proper performance of duties).
          Awarded : . Susp : FOR 1 MONTH .

19930129 :         Art icle 89 (Disrespectful toward a Commissioned Officer).
         Article 91 ( 4 specifications)
         Specification s 1 and 2: (Disrespect ful in language toward a First Class Petty Officer) .
         Specification 3 ( Disrespectful in language toward a Chief Petty Officer) .
          Spec ification 4: (Willfully disobey).
         Article 128 (3 specifications) ( Assault , u nlawfully pushing Petty Officers).
          Article 134 ( 4 specifications)
          Specification 1: (Drunk and disorderly).
         Specifications 2 and 3) (Disorderly conduct).
         Specification 4: (Indecent exposure).
          Awarded : . Susp : .

S CMs :

SPCMs:

C C :

Retention Warnings:

19911018 :         For nonjudicial punishment of 19911018.

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ 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 Representation:    From Congress m ember :

Oth er Documentation:

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 5 March 1993 until 21 July 1994), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 .





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

Applicant’s Issues

 1. The Applicant opines that his Other Than Honorable discharge is too harsh.
2. Alcohol dependency contributed to and mitigated his misconduct .
3. Post-service activity/conduct warrants consideration.
Decision

Date: 2009 0812   Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall - PATTERN OF MISCONDUCT .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, nonjudicial punishments ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (UA, fail ure to go to Divisional Quarters), Article 89 (Disrespectful toward a commissioned officer), Article 91 (Insubordinate conduct, 4 specifications, disrespectful in language toward a f irst c lass p etty o fficer, disrespectful in language toward a c hief p etty o fficer, and willfully disobey ing a petty officer ) , Article 92 (Wrongfully possessing an alcohol beverage in a naval vehicle and on board a naval vessel, 2 specifications), Article 128 (Assault, 3 specifications, unlawfully pushing a p etty o fficer), and Article 134 (6 specifications, two drunk and disorderly conduct , two disorderly conduct, indecent exposure, and incapacitated for the performance of duties). Based on the offense s committed by the Applicant, command administratively processed for separation. The Applicant did appear before an a dministrative b oard, which determined by a vote 3-0 that the Applicant had committed a lcohol r ehabilitation f ailure and warranted separation from the Navy.

: (Decisional) ( ) . The Applicant contends his discharge was too harsh and his alcohol depen dency mitigated his misconduct . T he Applicant stated he was getting married in Feb ruary 1992, but was also referred by his command to attend Level III treatment in Jan uary /Feb ruary 1992 . The Applicant made the choice to refuse Level III treatment to attend his wedding. He was also referred to Level I treatment in Oct ober 1991 , but was dropped, due to having alcohol o n his breath at his first Level I treatment appointment. Subsequently, the Applicant was determined to be an a lcohol r ehabilitation f ailure . Most of the above violations are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s command did not refer him to court-martial, but instead process ed him for administrative separation. While the Applicant may feel his personal circumstances were the underlying causes of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or that he should not be held accountable for his actions.

Issue 3 : (Decisional) ( ) . The Applicant contends he has been employed in sales and m anagement , and has been successful in maintaining his sobriety since Dec ember 2006 . In addition, the App licant made a statement to the Board that after his discharge from the Navy , he d id receive two driving under the influence (DUI) tickets, in 2002 and 2006. NDRB notes the post-service evidence provided by the Applicant was not sufficient to support his case for upgrade .

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and service record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain MISCONDUCT - .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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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