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NAVY | DRB | 2009_Navy | ND0901663
Original file (ND0901663.rtf) Auto-classification: Denied

ex-FN, USN
Current Discharge and Applicant’s Request
Application Received: 20090527
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)        19991206 - 19991215     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19991216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020328      Highest Rank/Rate: FN
Length of Service : Y ear ( s ) M onth ( s ) 13 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 2.3 ( 3 )      Behavior: 2.0 ( 3 )        OTA: 2.28

Awards and Decorations ( per DD 214):      NMCOSR

Periods of C ONF :

NJP :

- 20010124 :       Article 87 (Missing movement)
         Article 134 (Drunkenness-incapacitation for performance of duties)
         Awarded : Susp ended:

- 20011121 :       Article 86 (UA)
         Article 134 (Drunkenness-incapacitation for performance of duties)
          Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 200101 25 :       For violation of UCMJ Article 87, missing movement; Article 134, Drunkenness-incapacitation for the performance of duties.

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 18, effective 12 December 1997 until
21 August 2002, Article 1910-140, SEPARATION 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 .




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

Applicant’s Issues

 1.       Seeking to reenlist.
2.       Discharge inequitable - the punishment did not fit the crime
3.       N ever failed the alcohol rehabilitation program.
Decision

Date: 20100304            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 NAVPERS 1070/613 (Page 13) warning and two nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence (UA) of unknown duration), Article 87 (Missing ship’s movement – 2 specifications ), and Article 134 (Drunkenness-incapacitation for duty, 2 specifications ) . The record of evidence also reflects the Applicant completed an intensive outpatient alcohol treatment program 25 October 2000 and after completing the program he was involved in an alcohol related incident and was determined to be not physically qualified to carry out his duties. Based on the offenses committed by the Applicant and his failure to comply with the aftercare program, his command administratively processed him for separation due to alcohol rehabilitation program failure (ARF) and a pattern of misconduct (POM) . When notified of a dministrative s eparation p rocessing, the Applicant elected his rights to consult with qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority Review.

: (Nondecisional) the Applicant is seeking a change in his reentry code (RE code) for purposes of reenlisting in the Navy or National Guard. The Applicant contends his RE code is too harsh for the offense he committed. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a RE code. Only the BCNR can make changes to RE 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.
Issue s 2 - 3 : (Decisional) ( ) . The Applicant contends his discharge was inequitable because it did not fit the crime and he never failed the ARF program . When the quality of a service member has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service as Honorable. A General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The record of evidence as previously discussed indicat es the following:1) the Applicant went to NJP on 24 January 2001 for “willfully ” miss ing two flights to Sasebo, Japan after completing Level II Alcohol Treatment in Yokosuka, Japan on 06 November 2001 and for failing to meet his required duties on 16 November 2001 due to the consumption of alcohol, and 2) despite receiving a retention warning months earlier , the Applicant was awarded a second NJP for being UA and incapacitated for the performance of duties due to alcohol consumption . Based on a review of the Applicant’s record of service the NDRB has determined that t here is no evidence of impropriety, inequity or procedural irregularities in his discharge. The Applicant’s service record contained sufficient evidence to support a basis for administrative separation processing of the Applicant due to ARF and POM and a subsequent discharge due to a POM, which reflected the more serious offense. Additionally, the NDRB determined that t he characterization of the Applicant's service as General (Under H onorable Conditions ) was equitable and consistent with the characterization of service assigned to others in similar circumstances.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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 .




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.

 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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