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NAVY | DRB | 2009_Navy | ND0901265
Original file (ND0901265.rtf) Auto-classification: Denied

ex-ENFR, USN
Current Discharge and Applicant’s Request
Application Received: 20090417
Characterization of Service Received:
Narrative Reason for Discharge:
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)        19911018 - 19920816     Active:  

Period of Service Under Review:
Date of Enlistment: 19920817     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950302      Highest Rank/Rate: ENFA
Length of Service : Y ear ( s ) M onth ( s ) 16 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.1 ( 2 )        OTA: 3.30

Awards and Decorations ( per DD 214):     

Periods of UA : UA: 19930413-19930512 (30 days), 19930622-19930707 (14 days), 19940213-19940219 (6 days)

NJP :
- 19930513 :       Article 86 (U nauthorized absence: 19930413-19930512 ( 30 days) surrendered )
         Awarded: Suspended:

- 19930722 :      Article 86 (U nauthorized absence: 19930622 -19930707 ( 14 days) apprehended )
         Awa rded : Susp ended:

- 19940408 :       Article 116 (Breach of peace)
         Article 134 (Disorderly conduct - drunkenness)
          Awarded : Susp ended:

- 19950120 :       Article 92 (Failure to obey an order or regulation)
          Article 134 (Communicating a threat)
         Article 134 ( Disorderly conduct)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 19930513 :       For unauthorized absence.

- 19930727 :       For unauthorized absence.
- 19940520 :       For breach of peace and disorderly conduct drunkenness. [Extracted from Commanding Officer’s message dated 19950202.]



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. Record of service .
2. Navy’s alcohol policy contributed to his disciplinary issues.

Decision

Date : 20 0 9 0709    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

 Issues 1-2 : ( ) . The Applicant contends his discharge should be upgraded based on his record of service which was good apart fr om period s of misconduct , and he claims the Navy’s alcohol policy (to allow 18 year olds to drink on base) contributed to his separation from service . 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 rec ord of service was marred by four NJPs for violation of the U niformed Code of Military Justice : Article 86 ( UA : 3 specification s to taling 50 days, one ended in apprehension by military police ), Article 92 (Failure to obey a n order or regulation) , Article 116 (Breach of peace) , Article 134 (Communicating a threat) and Article 134 ( Disorderly conduct). Violation of Articles 92 and 134 are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentenc e by a special or general court- martial. The command did not refer the Applicant for a court- martial but opted instead for an administrative discharge. Despite a Sailor’s prior record of se rvice, certain seriou s offenses warrant separation from the n aval service in order to maint ain proper order and discipline; the offenses committed by the Applicant meets this standard.

The Navy tried to assist the Applicant by placing him in Level III treatment for his alcohol use , which he completed . Following treatment, the Applicant was involved in an alcohol incident on 19 December 1994, and was deemed an alcohol rehabilitation failure. He was notified on 29 January 1995 that he was being involuntary separated due to a Pattern of Misconduct (POM) and Alcohol Rehabilitation Failure (ARF). The Applicant waived his rights to counsel and an Administrative Separation Board and was processed for a POM. While the Applicant may feel his abuse of alcohol was the un derlying cause of his separation , the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. Additionally, t he evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. The Board determined the awarded characterization of discharge, Under Other Than Honorable C onditions , was warranted . Relief denied.

For the Applicant’s edification, t he 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; attending 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 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 failed to provide any documentary evidence on his behalf for post-service consideration. 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 obt ain post- service documentation he may wish to apply for a personal appearance. There a re veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.

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. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 July 1994 until 2 October 1996),
Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - 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 .

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 92 (Failure to obey a n order or regulation) and Article 134 (Communicating a threat).

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 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 Board for Correction of Naval Records (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 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 NDRB 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 NDRB B oard 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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