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NAVY | DRB | 2009_Navy | ND0901238
Original file (ND0901238.rtf) Auto-classification: Denied

ex-ENS, USN
Current Discharge and Applicant’s Request
Application Received: 20090407
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: BUPERS 0649 051040Z/ MAR09

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

Summary of Service

Prior Service:
 Inactive: USN ( DEP )      20050920 - 20051024      Active:  20051025 - 20071108 HON

Period of Service Under Review:
 Date of Appointment : 20071109     Age: 25
Years Contracted : Indefinite
Date of Discharge: 200 9 0331       Highest Rank : ENS
Length of Service: 01 Year(s) 04 Month(s) 22 D ay(s)
Education Level: BS      
Officer’s Fitness reports: Not Available
Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :
- 20080111 :       Art icle 111 ( Drunken or reckless operation of a vehicle, aircraft, or vessel )
         Article 134 (Drunkenness-incapacitation for performance of duties)
          Awarded : Punitive letter of reprimand RESTR Susp ended :

S CM : SPCM: C C : Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”

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 /To Representat ion :            From /To Congress m ember :         
Oth er Documentation :   


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

Applicant’s Issues

 1. Wants educational benefits to enter civilian life with greater opportunities.
2. Claims misconduct involved o ne isolated incident with an otherwise outstanding record.
Decision

Date: 20 10 0115             Location: Washington D.C .        R epresentation :

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 g overnment al 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 one nonjudicial punishment (NJP) for violations o f the Uniform Code of Mili tary Justice (UCMJ): Article 111 ( Drunken or reckless operation of a vehicle, aircraft or vessel) and Article 134 ( Drunkenness, incapacitation for performance of duties) , which resulted in a punitive letter of reprimand . Based on the offense s committed by the Applicant and his substandard performance , his command administratively processed him for separation. The Applicant submitted a request to continue on active naval service, but it was disapproved.

Issue 1 : (Nondecisional) The Applicant wants to use his educational benefits to enter civilian life with greater 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.

Issue 2 : (Decisional) ( ) . The Applicant noted that his characterization of discharge was inappropriate as it was apparently based on three alleged incidents involving alcohol and that his commanding officer and executive officer took into account a pre-service driving while intoxicated (DWI) charge, which was later reduced to a reckless driving conviction. The Applicant contends his driving under the influence (DUI) conviction as an ensign was an isolated incident and his awarded characterization of service does not reflect his otherwise outstanding record. The Applicant did not appeal his NJP, and has taken multiple measu res to resolve his alcohol problem . The commanding officer (CO) notified the Applicant of administrative separation processing for misconduct and substandard performance. In the CO’s letter of 5 March 2008, he stated that he had “lost confidence in his [the Applicant’s] judgment and ability to serve as a Naval Officer. ” In addition to the DUI, the CO also noted, “[The Applicant’s] lack of Honor, Courage, and Commitment to duty by drinking to excess knowing, the following morning h e had a major final exam for his course of instruction, further demonstrates his poor judgment and his inability to perform and comprehend his duties as a Naval officer.” The CO did not mention anything regarding the Applicant’s pre-service DWI.

For the Applicant’s information, per SECNAVINST 1920.6 C , officers who do not maintain required standards of performance or professional or personal conduct may be processed for separation for cause due to substandard performance of duty , misconduct, or moral and/ or professional dereliction. When separation is solely for reasons constituting substandard performance of duty or solely for removal of ecclesiastical endorsement, the characterization must be Honorable. In this case, the Applicant was also processed for separation for both his substandard performance and misconduct. Normally, t he serious nature of misconduct and moral or professional dereliction on the part of commissioned officers require separation under Other Than Honorable Conditions. Characterization as General (Under Honorable Conditions) is appropriate if an officer’s service ha s been honest and faithful, but significant negative aspects of his conduct or performance of duty outweigh the positive aspects of his military record. Based on the Applicant’s record of service, the NDRB determined the awar ded characterization of service—General—was warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and service r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .


Pertinent Regulation/Law

 A. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.
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 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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