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NAVY | DRB | 2009_Navy | ND0901612
Original file (ND0901612.rtf) Auto-classification: Denied

ex-AMAA, USN
Current Discharge and Applicant’s Request
Application Received: 20090519
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)        20050729 - 20050829     Active:   19971001-19980306 ELS

Period of Service Under Review:
Date of Current Enlistment: 20050830     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080731      Highest Rank/Rate: AMAN
Length of Service : Y ear ( s ) M onth ( s ) 25 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 3.00

Awards and Decorations ( per DD 214):     

Periods of UA: 20080531-20080707 (37 days)

NJP :
- 20060405 :       Article (False official statement)
         Article 111 (Drunken or reckless operation of a vehicle)
         Article 134 (Disorderly conduct)
          Awarded: ORAL Suspended:

- 20080709 :      Article 86 (U nauthorized absence - 37 days)
         Awarded : Susp ended:

S CM :

SPCM:

C C :
- 20080603 :       Offense: Driving under the influence (DUI) and refusing breathalyzer in city of Virginia Beach , Virginia .
         Sentence : 365 days in jail (355 day suspended), one year suspension of operato rs license, and fines and court cost of $586.00

- 20080624 :       Offense: Driving under the influence (DUI) and refusing breathalyzer in city of Chesapeake , Virginia.
         Sentence : 180 days in jail (160 days suspended), one year suspension of operators license, and fines and court cost of $457.00

Retention Warning Counseling :
- 20060405 :       For violation of UCMJ Article 107, false official statement; Article 111, drunken or reckless operation of vehicle and Article 134, disorderly conduct.



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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until Present, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

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 86 (Unauthorized absence), Article (False official statement) , Article 111 (Drunken or reckless operation of a vehicle) and Article 134 (Disorderly conduct) .




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

Applicant’s Issues

1. The Applicant is seeking better employment opportunities      
2. The Applicant seeks to reenlist into the Armed Forces.
3. The Applicant believes his discharge was inequitable based on the fact it was a civilian matter.

Decision

Date : 20 10 0225 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall CIVIL CONVICTION .

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. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standa rds of equity and propriety. The Applicant’s record of service included NAV PERS 1070/613 (Page 13) warning and nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence for 37 days), Article (False official statement), Article 111 (Drunken or reckless operation of a vehicle) and Article 134 (Disorderly conduct).
 In addition, the Applicant had t w o civilian convictions for driving under the influence. The Applicant was screened by the Drug and Alcohol Program Advisor (DAPA) after his first alco hol incident and completed treatme nt in April 2006. Based on further civilian offenses (alcohol related) committed by the Applicant , processing for administra tive separation was mandatory for civilian conviction and alcohol rehabilitation failure. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement for considerat ion by the separating authority and request an administrative board .

: (Nondecisional) The Applicant is seeking better employment opportunities and seeks to reenlist into the Armed Forces . 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. Also , s ince the NDRB has no jurisdiction over reenlistment, reentry, or reinstatem ent 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.
: (Decisional) ( ) . The Applicant believes his discharge was inequitable based on his misconduct being a civilian matter. The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Commission of a serious offense does not require adjudication by non - judicial punishment , judicial proceedings or civilian conviction . The evidence of record demonstrate s the Applicant was respon sible for his conduct and should be held accountable f or hi s actions. The NDRB opined the Applicant’s irresponsible actions are to blame for his family’s hardship, not the Navy. The NDRB determined that the Applicant’s three driving under the influence (DUI) violations warranted separation from the Navy. Relief denied.

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 UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain CIVIL CONVICTION . 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, Employment/Educational Opportunities, Reenlistment/RE-code 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 Disabled American 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 their 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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