Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900382
Original file (ND0900382.rtf) Auto-classification: Denied

ex-FC3, USN
Current Discharge and Applicant’s Request
Application Received: 20081205
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)      19970613 - 19970910     Active:   19970911 - 20001205

Period of Service Under Review:
Date of Enlistment: 20001206     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020219      Highest Rank/Rate: FC3
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20020111 :       Article 134 (Drunk and disorderly)
          Awarded : Susp ended :

S CM :

SPCM:

C C :

- 20010824 :       Offense: Misdemeanor assault and battery
         Sentence : Fine, 12 Months Confinement. Jail time suspended except for three consecutive weekends.

Retention Warning Counseling :

- 20011114 :       For failure to successfully complete alcohol rehabilitation due to your alcohol abuse; specifically you public intoxication arrest of 29 June 2991, following IMPACT treatment on 2 May 2001.

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19970911 UNTIL 20001205 ”

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 Representat ion :    From Congress m ember :

Oth er Documentation :





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

Applicant’s Issues

 1. Isolated incident .
2. Mitigating circumstances.
3 . Post-service conduct.

Decision

Date: 20 0 9 0312             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 he is entitled to a discharge upgra de because this was an isolated incident . In reviewing dischar ges, 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 on e retention warning and one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 134 (Drunk and disorderly conduct). The Applicant was also convicted of misdemeanor assault and battery on a police officer while intoxicated. Despite a Sailor’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval service to maintain proper order and discipline. The NDRB determined an upgrade founded upon the Applicant’s record of service would be inappropriate.
: ( ) . The Applicant contends he is entitled to a discharge upgrade due to circumstances which mitigated his misconduct. Specifically , the Applicant contends he was not involved in willful misconduct because he was intoxicated and was mugged while on leave. The Applicant should understand his separation was not due to misconduct; rather he was separated due to his repeated failures to adhere to the aftercare portion of his alcohol abuse rehabilitation . The record of evidence clearly shows t he Applicant’s command made every effort to rehabilitate the Applicant by enrolling the App licant in two separate programs: IMPACT in May 2001, and Level I treatment in August 2001. The command even went so far as to obtain a waiver from the Chief of Naval Personnel to avoid administrative separation processing in November 2001 following the Applicant ‘s third alcohol-related incident in a six month period . The record shows the Applicant was subsequently involved in another alcohol-re lated incident in December 2001 in which the Applicant became intoxicated and was assaulted. The Applicant was punished at NJP for drunk and disorderly conduct under such circumstances as to bring discredit on the Navy. The NDRB noted the record of evidence clearly shows the Applicant waived his right to trial by court-martial. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial he would have had the opportunity to mount a defense against the charges against him. The Applicant did not provide any documentation to support his contention.

The Applicant should also understand that his misconduct, although not the reason for his discharge, was properly considered by the command in determining the characterization of the Applicant’s service. For the edification of the Applicant, a “General (Under Honorable Conditions)” discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. The NDRB determined the characterization of service received, General (Under Honorable Conditions) , was an appropriate characterization considering the length of service and the violations of the UCMJ and civil law involved , and an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because of his post-service conduct. 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; attendance or completion of higher education (official transcripts) and documentation of alcohol non-dependency and 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 rev iewed 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.

The Applicant provided character reference letters which verifi ed his employment. While the Board applauds the A pplicant’s post- service efforts, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization. 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. The Board determined the charact erization of service received, General (Under Honora ble Conditions), was an appropriate characterization considering the length of service and violations of the UCMJ and civil law involved , and based on the limited post- service documentation provided an upgrade would be inappropriate.
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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 until
21 August 2002, Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION.

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 .



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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0800741

    Original file (ND0800741.rtf) Auto-classification: Denied

    [Extracted from CO’s message in case file].Applicant incurred DUI/DWI and alcohol related incident after having received Level I treatment that resulted from a previous DUI/DWI. The evidence of post service conduct while commendable did not provide a basis to change the narrative reason.Based on the foregoing evidence, the Board found the Applicant was properly discharged and determined a change in the narrative reason would be inappropriate.After a thorough review of the available...

  • NAVY | DRB | 2011_Navy | ND1101213

    Original file (ND1101213.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2010_Navy | ND1000161

    Original file (ND1000161.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2009_Navy | ND0901217

    Original file (ND0901217.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .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...

  • NAVY | DRB | 2012_Navy | ND1200725

    Original file (ND1200725.rtf) Auto-classification: Denied

    After reviewing the separation documentation, the Separation Authority ordered the Applicant to be discharged with a General (Under Honorable Conditions) characterization of service for Misconduct (Serious Offense). ” 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. Additionally, the NDRB has no authority to...

  • USMC | DRB | 2009_Marine | MD0900772

    Original file (MD0900772.rtf) Auto-classification: Denied

    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...

  • USMC | DRB | 2010_Marine | MD1002111

    Original file (MD1002111.rtf) Auto-classification: Denied

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

  • NAVY | DRB | 2011_Navy | ND1101809

    Original file (ND1101809.rtf) Auto-classification: Denied

    Representation: NONE By a vote of the Characterization shall .By a vote of the Narrative Reason shall .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...

  • NAVY | DRB | 2008_Navy | ND0800739

    Original file (ND0800739.rtf) Auto-classification: Denied

    The Board could find no connection between his misconduct and a medical issue which would cause his misconduct and there was no medical documentation on record or submitted in support of his claim. 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 conduct mitigates the reason for the characterization of discharge.The...

  • NAVY | DRB | 2009_Navy | ND0901616

    Original file (ND0901616.rtf) Auto-classification: Denied

    The commands reasoning for processing were as follows: misconduct due to a pattern of misconduct, misconduct due to drug abuse, misconduct due to commission of a serious offense and alcohol abuse rehabilitation failure; of which the command chose pattern of misconduct. ” 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...