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NAVY | DRB | 2008_Navy | ND0801527
Original file (ND0801527.rtf) Auto-classification: Denied

ex-ITSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080716
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19981210 - 19990124                 Active:

Period of Service Under Review:
Date of Enlistment: 19990125     Period of E nlistment : Years 12 Months Extension       Date of Discharge: 20020612
Length of Service : Y ear s M onth s 19 D a ys       Education Level:        Age at Enlistment:      AFQT: NFIR
Highest Rank /Rate : IT3   Evaluation M arks: Performance:   3.0 ( 4 )          Behavior: 3.0 ( 4 )        OTA: 2.72
Awards and Decorations ( per DD 214): BATTLE “E” RIBBON NDSM AFEM
Periods of UA : 20010613-20010614 (1 Day )

NJP:
- 20000620: Article 86 (U A)
         Article 92 (Violation of a lawful order)
         Awarded :

- 20010809: Article 91 (Disrespectful towards a petty officer)  
Awarded: BW for 3 Days , Susp ended: BW for 1 Day

- 20020214 : Art icle 112a ( Drug use; use and possession of Marijuana, a controlled substance), 2 Specifications
Awarded :

- 2002040 9 : Art icle 91 (Disrespectful in language)
Awarded : (3 days) Susp ended : (1 day)

Arrest: 4
         - 20010922: Arrested by Ft. Eustis Military Police for DUI (Court Date Nov 2001) (4 th Alcohol Incident)
         - 20011019: Received “speeding ticket” for wearing coveralls off pier, violation of Uniform Regulations and IKEINST.
         - 20011201: Arrested on Ft. Eustis for possession of controlled substance.
         - 20020118: Arrested by Newport News, VA Police of DUI (Court Date Jan 2002) (5 th Alcohol Incident)

C C :
         Reported for a court appearance without command representation. Personal appearance was unsatisfactory; remarks were “Loose bagging sweat shirt and trousers, dressed in the style of a Gangster Rapper”, unshaven goatee. He r eceived $100 fine, plus court cost, 10 day in jail (suspended), 10 days suspended license.

Retention Warnings :
- 20010924: For reporting to Executive Officer’s Inquiry and not obse rving proper military bearing and substandard
military appearance.

- 20010910: For reporting 5 minutes late to XO directed alcohol de-glamorization training, as a result of his public
intoxication on 20010831.

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 Representat ion :    From Congress m ember :

Other Documentation (Describe) :

Pertinent Regulation/Law

 A. The Marine Corps Separation and Retirement Manual, (MCO P1600.19F), effective 1 September 2001 until Present, Paragraph 6209, ALCOHOL REHABILITATION FAILURE.

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-ma rtial for violation of the UCMJ; Article 86 (Unauthorized absence), Article 91 (Insubordinate conduct), Article 92 (Violation of a lawful order) and Art icle 112a (Use and possession of a controlled substance).




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

Applicant’s Issues

1. Inequitable discharge based solely on his personal life with alcohol.

Decision

Date : 20 08 1106        Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall ALCOHOL REHABILITATION FAILURE .
Discussion

 : ( ) . The Applicant contends his discharge was inequitable due to it being based solely on his personal life with alcohol . 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. The Applicant’s record of service was marred by four arrests, a civilian court appearance, 2 retention warnings , and 4 N JP’s for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (U A), Article 91 (Insubordinate conduct), Article 92 (Failure to obey an order or regulation) and Article 112a (Drug use, wrongful use o f a controlled substance). These violation s are considered serious offense s , punishable by a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

The Applicant has requested an upgrade of his discharge characterization to “Honorable”. W hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel , it is appropriate to characterize that service under “H onorable ” conditions. A “General (Under Honorable Conditions) ” discharge is appropriate when the quality of a member’s servic e has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record , it is appropriate to characterize that service under “General (Under Honorable Conditions) ” . The Board acknowledged the excessive misconduct of the Applicant constitutes a significant departure from the conduct expected of a U. S. Sailor.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. 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 . Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; 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 company’s or other financial institutions; documentation of a drug free lifestyle; continued higher education and character witness statements . The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.

Besides the personal statement provided on the DD Form-293, the Applicant provide d additional evidence and accomplishments of his current work status at the Army and Air Force Exchange Service (AAFES); i.e. performance reports, certificates and TAD travel. The Board commends the Applicant’s civilian service, in a hostile environment, in support of our nations finest . However, to warrant an upgrade to “Honorable ” the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined based on the limited documentation provided and the circumstances surrounding the discharge that an upgrade would be inappropriate and the characterization of service received , “General (Under Honorable Conditions) ” was an appropriate characterization considering the time served and the nature of the UCMJ violation s involved.


After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found


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 or is referred to a court martial 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 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 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 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 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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