Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901486

Original file (ND0901486.rtf) Auto-classification: Denied

ex-HA, USNR

Current Discharge and Applicant’s Request

Application Received: 20090505

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [COMMISSION OF A SERIOUS OFFENSE]

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

Summary of Service

Prior Service:
Inactive:                           Active:

Period of Service Under Review:
Date of Current Enlistment: 19920518      Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950818      Highest Rank/Rate: HN
Length of Service : Inactive: Y ear ( s ) M onth ( s ) 01 D a y ( s )
         Active: Y ear( s ) M onth( s ) 29 D a y ( s )
Education Level:        AFQT: 84
Evaluation M arks:         Performance: 2.2 ( 2 )      Behavior: 2 .0 ( 2 )        OTA: 2.2

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :
- 19950109 :      Article (Insubordinate conduct toward a Warrant Officer)
         Article (Failure to obey order or regulation)
         Article 111 (Drunken or reckless driving)
         Article 134 (Wrongfully communicated a threat to a Second Class Petty Officer)
         Awarded: Suspended:

- 19950728 :      Article (UA) , 4 specifications
         Awarded: Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 19940525 :       For failure to follow a direct order, UA from class on 23 May 1994.
- 19941014 :       For being repeatedly late for work.
- 19950310 :       For completion of a program for rehabilitation for alcohol dependence at the Naval Alcohol Rehabilitation Center, Jacksonville, Florida.

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 :

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 - COMMISSION OF A SERIOUS OFFENSE.

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 91, 92, 111 , and 134.

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

Applicant’s Issues

1.        Wants to reenlist in the reserves.
2.       Post-service conduct warrants consideration.
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 governmental 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 three NAVPERS 1070/613 (Page 13) warnings and two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, specifics unknown), Article 91 (Insubordinate conduct toward a warrant officer, disrespectful in language), Article 92 (Failure to obey order or regulation, drinking underage), Article 111 (Drunken or reckless driving), and Article 134 (Wrongfully communicated a threat to a second class petty officer) . The Applicant had charges for a third NJP for violations of the UCMJ: Article 134 (2 specifications, consuming alcohol under 21 years of age and wrongfully possessing an identification card, when knowing the same to be unauthorized), but the charges were dismissed . The Applicant was diagnosed with alcohol dependence with physiological dependence and was admitted to Level III alcohol treatment, which he successfully completed on 10 March 1995 . Based on the offenses committed by the Applicant after his Level III treatment, his command administratively processed him for separation . When processed for administrative separation, the Applicant waived his rights to consult with qualified counsel and request an administrative board, but he elected to submit a written statement.

Issue 1: (Nondecisional) The Applicant wants to reenlist in the reserves . 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) (Equity) RELIEF NOT WARRANTED . The Applicant contends he is an excellent intensive care unit (ICU) nurse, is now clean and sober, has a wealth of knowledge in the area of nursing, and is working on a master's degree in nursing . The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration . The Applicant provided documentation from his state's Department of Health and Hospitals, Office of Addictive Disorders, stating he has reported 10 months of sobriety, negative urinalysis tests, and continued involvement with Narcotics Anonymous and Alcoholics Anonymous . He also provided a copy of his Bachelor of Science degree in nursing . By a 4-1 vote, the NDRB determined the evidence of post-service conduct was commendable, but not sufficient to warrant consideration for upgrade of his discharge . However, even if the Applicant could have produced additional evidence on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade . By unanimous vote, the NDRB voted not to change the narrative reason for discharge.

Summary: After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable . Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

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.

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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NAVY | DRB | 2009_Navy | ND0901486

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