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NAVY | DRB | 2009_Navy | ND0901268
Original file (ND0901268.rtf) Auto-classification: Denied

ex-OS3, USN
Current Discharge and Applicant’s Request
Application Received: 20090416
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)        19970821 - 19970919     Active:            19970920 - 20010902
                           20010903 - 20050706
                           20050707 - 20081023

Period of Service Under Review:
Date of Enlistment: 20081024     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090330      Highest Rank/Rate: OS2
Length of Service : Y ear ( s ) M onth ( s ) 07 D a y ( s )
Education Level:        AFQT: 51
Evaluation M arks:         Performance: 5.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 3.43

Awards and Decorations ( per DD 214):      NCM (2) (3) (2) (3) (5) (2) LoC

Periods of UA /C ONF :

NJP :
- 20090204 :       Article 92 (Failure to obey order or regulation)
         Awarded: Oral reprimand S usp ended:

S CM :

SPCM:

C C :

Retention Warning Counseling : NFIR

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. Seeks to r eenlist in the armed forces.
2. Claims his discharge was u nfair .

Decision

Date: 20091204            Location: Washington D.C.        R epresentation : 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 evidence submitted by the Applicant. During this enlistment, the Applicant’s record of service included one nonjudicial punishment (NJP) for violation o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 ( Failure to obey order or regulation : wrongfully operating a motor vehicle while under the influence of alcohol ) . The Applicant had a similar NJP in October 2006 ( third enlistment) for violation of Article 92 (Failure to obey order or regulation : wrongfully operating a motor vehicle while under the influence of alcohol) and Article 112 (Drunk on duty). Based on the Applicant’s return to alcohol abuse and offense committed , his command administratively processed him for separation. When processed for administrative separation, the Applicant waived his rights to consult with qualified counsel and submit a written statement. He was not eligible to request an a dministrative board.

Issue 1 : (Nondecisional) The Applicant is requesting an upgrade to reenlist in the armed forces. 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. See the Addendum paragraph, Reenlistment/RE-code , for more information.
Issue 2 : (Decisional) ( ) . The Applicant contends he received an unfair discharge. In his statement, the Applicant stated he was arrested on 23 January 2009 for driving under the influence (DUI) even though he did not operate his vehicle. The Applicant was taken to NJP and found guilty by the Applicant’s commanding officer (CO) . However, the Applicant stated the CO based his decision on the police report and did not provide the Applicant a chance to prove his innocence. On 23 May 2009, the Applicant received a phone call from an attorney saying his case was dismissed. The Applicant provided a copy of a letter from the U.S. District Court, District of Hawaii , indicating his case was terminated on 24 March 2009, and the drunken driving traffic offense was dismissed by the government. The military police report of 29 January 2009, contained statements from the parking lot attendant and two police officers who witnessed the Applicant driving his vehicle in the parking lot while under the influence of alcohol. The Applicant’s blood alcohol level was found to be 0.20 percent. Their statements directly contradict the Applicant’s contention that he did not operate his vehicle. Al though the DUI charges may have been dismissed, th e Applicant’s intoxication during the incident is considered a serious alcohol incident , and a violation of his aftercare program . The NDRB noted that the Applicant was discharged for alcohol rehabilitation failure and not for commission of a serious offense, thus the argument regarding dismissal of the case is irrelevant.

P ursuant to the Naval Military Personnel Manual (MILPERSMAN) 1910-152, Separation by Reason of Alcohol Rehabilitation Failure , any serious alcohol incident or alcohol abuse that occurs subsequent to treatment is considered a treatment failure. Commands shall process for ADSEP all members considered to be treatment failures unless a written waiver is obtained. A s noted previously, the Applicant had an alcohol incident in October 2006, and had signed a NAVPERS 1070/613 counseling sheet on 18 October 2006, which stated in paragraph 5, “Any failure to adhere to the guidelines cited above, which is reflected in your future performance and/or conduct, will make you eligible for administrative separation action. ” The Board could not verify when the Applicant received treatment for his alcohol abuse , and t he refore, the presumption of regularity of governmental affairs was applied i n this case in the absence of a complete discharge package and medical records. The Board found no evidence of a written waiver and determined the awarded characterization of service was warranted.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, 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 discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

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 .



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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