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NAVY | DRB | 2009_Navy | ND0900218
Original file (ND0900218.rtf) Auto-classification: Denied

ex-FN, USN
Current Discharge and Applicant’s Request
Application Received: 20081112
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: USNR (DEP)     20010516 - 20010828     Active: 

Period of Service Under Review:
 Date of Enlistment: 20010829      Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20060405       Highest Rank/Rate: FN
Length of Service: Years Months 07 D ays
Education Level:         AFQT: 37
Evaluation Marks:        Performance: NFIR         Behavior: NFIR    OTA: NFIR

Awards and Decorations (per DD 214):     (2)

Periods of UA/CONF: UA: See below / CONF:

NJP:
- 20050314 :      Article 86 (UA) 20050118 to 20050314 (55 days)
         Article 87 (Missing movement)
         Awarded: Suspended:

SCM: SPCM:

CC:
- 20040210 :      Offense: Solicitation of prostitution
         Sentence: Fine $500.00, jail for 90 days, court cost $80.65. Suspended 86 days of jail

- 20040421 :      Offense: DUI
         Sentence: Jail for 6 months, Fine $250.00, court cost $289.00, license suspended for 12 months, license restricted for 12 months, VASAP. Jail suspended.

- 20040708 :      Offense: Driving under the influence of alcohol
         Sentence: Jail for 6 months, fined $250.00, court cost $289.00. Jail suspended.

- 20060214 :      Offense: Conspiracy to commit arson (Class 5 Felony)
         Sentence: Jail for 2 years, court cost $406.00. Suspend 1 year and 11 months of jail.
Retention Warning Counseling:

- 20040322 :      For civil conviction.
- 20050314:      For unauthorized absence and missing movement.
- 20050829:      For violation of Article 86 (UA, failure to go to place of duty).

Administrative Corrections to the Applicant’s DD 214

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

         “ MILPERSMAN 1910-152 ”
         “JPD ”
         “ALCOHOL REHABILITATION FAILURE ”
         “ TL: 04JAN18-05MAR14 ”

The NDRB will recommend to the Commander, 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 member:

Other Documentation:

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 29 April 2005 until Present, Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE 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-martial for violation of the UCMJ: Article 86 (UA), and Article 87 (Missing movement).


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

Applicant’s Issues

 1. Strongly believes a mistake was made on his discharge.
2. Was not given an administrative board to determine proper discharge.

Decision

Date: 2009 0223             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

 Issues 1: ( ) . The Applicant contends his discharge should be upgraded based on the fact he strongly believes a mistake was made on his 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. The Applicant’s record of service was marred by three retention warnings, one NJP and four CC offenses for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, 20050118 to 20050314 (55 days) and Article 87 (Missing movement). The Applicant’s four CC offenses represented: 1) S olicitation of prostitution , sentence: Fine $500.00, jail for 90 days, suspended 86 days of jail, and court cost $80.65; 2) Driving under the influence (DUI), sentence: Jail for 6 months, fine $250.00, court cost $289.00, license suspended for 12 months, license restricted for 12 months, and jail time suspended; 3) DUI of alcohol (2 nd offense) , sentence: Jail for 6 months, fined $250.00, court cost $289.00, and jail time suspended; 4) C onspiracy to commit arson (Class 5 Felony) , sentence: Jail for 2 years, suspend 1 year and 11 months of jail, and court cost $406.00.
For the edification of the Applicant, a service member may be separated based on commission of a serious military or civilian offense when the offense warrants separation and the offense would warrant a punitive discharge. There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence.
The command also recommended the Applicant attend Level I treatment based on his alcohol related incidents. He was subsequently discharge from the Substance Abuse Rehabilitation Program as a treatment failure, thus making the Applicant an alcohol rehabilitation failure. The Board determined the command had a preponderance of evidence, in addition to the Applicant’s alcohol rehabilitation failure, to substantiate his administrative discharge. The awarded discharge characterization was appropriate and an upgrade would be inappropriate.

Issue 2: (Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge should be upgraded because he was not given an administrative board. In regard to the Applicant’s contention he was not given an administrative separations board prior to being discharged, pursuant to Navy regulation a service member is not entitled to an administrative separations board unless the least favorable characterization of discharge is “Under Other Than Honorable Conditions” or the service member has at least six years of active duty service. Since the Applicant had less than 6 years of service at the time of discharge and was awarded a “General (Under Honorable Conditions), the NDRB determined he was not entitled to an administrative separations board. The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.

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. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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; 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.
Besides the Applicant DD Form 293, no documentation was provided for review. To warrant an upgrade 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. Should the Applicant feel his post service conduct becomes substantial enough to warrant a personal appearance, there are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

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


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, provided 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 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 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.
Employment/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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