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NAVY | DRB | 2009_Navy | ND0902006
Original file (ND0902006.rtf) Auto-classification: Denied

ex-EN3, USN
Current Discharge and Applicant’s Request
Application Received: 20090702
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)        19980221 - 19980810     Active:  

Period of Service Under Review:
Date of Current Enlistment: 1998081 1     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200402 0 5      Highest Rank/Rate: EN2
Length of Service : Y ear ( s ) M onth ( s ) 25 D a y ( s )
Education Level:        AFQT: 36
Evaluation M arks:         Performance: 3.5 ( 6 )      Behavior: 3.0 ( 6 )        OTA: 3.17

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20000209 :       Article 86 (Absent without leave)
         Awarded : Susp ended:

- 20010122 :       Article 86 (Absent without leave)
         Article 92 (Failure to obey order or regulation )
         Awarded : CC 30 DAYS Susp ended:

- 20040123 :       Article 86 (Absence without leave)
         Awarded : Susp ended:


S CM :

SPCM:

C C :

- 20020923 :       Offense: DUI
         Sentence : $350.00, $77.00 court cost, 30 days in jail (suspended), one year operators license suspension, two years unsupervised probation, must complete VASAP.

Retention Warning Counseling :

- 20000209 :       For violation of UCMJ, Article 86 (Absence without leave).

- 20010709 :       For receiving courtesy turn ov er from the Norfolk Police Department to the Hampton Roads Area Shore Patrol as a result of underage consumption of alcohol, an incident involving alcohol on 20010310.

- 20030228 :       For failure to successfully complete alcohol rehabilitation due to your alcohol dependency/abuse.

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. Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION.

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.        Wants to use the GI Bill and become a firefighter .
 2 .       Post-service conduct.
 3.       Completed his enlistment contract.
4 .       Board issue: Propriety of discharge characterization for alcohol rehabilitation failure.
Decision

Date: 20 10 0628             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 g overnment al 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) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave (3 separate NJPs)) and Article 92 (Failure to obey order or regulation) , and one civilian conviction for driving under the influence. Based on a 30 October 2003 alcohol -related incident (unauthorized absence due to heavy drinking) after having received a Page 13 administrative counseling for failure to successfully complete alcohol rehabilitation (28 February 2003), command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority (GCMA) review .

Applicant : (Nondecisional) The Applicant wants to use his GI Bill education benefits and become a firefighter . 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.
Applicant : (Decisional) ( ) . The Applicant contends that he sought help after his naval serv ice for his abuse and no longer consumes alcohol. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Documentation to help support a post-service conduct upgrade includes, but is not limited to, evidence of a clean driving record and attendance at Alcoholics Anonymous meetings; 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; and attendance or completion of higher education (official transcripts) . While it is commendable that the Applicant obtained counseling for his alcohol abuse, he does not provide documentary evidence for post-service consideration. The Applicant could have produced evidence as stated in the above paragraph with the full understanding that completion of these items alone does not guarantee an upgrade.
Applicant : (Decisional) ( ) . The Applicant contends that he completed his initial contract of four years. His contract included a 24-month extension for a total of six years, which is considered the length of the contract. No distinction is made for initial service and an extension.

NDRB : (Decisional) ( ) . The NDRB did complete a thorough review of the circumstances that led to the Applicant’s discharge and the discharge process to ensure it met the pertinent standards of equity and propriety. Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION states that “the characterization of separation should be Honorable, unless an Entry Level Separation (ELS) (MILPERSMAN 1910-308) or General (Under Honorable Conditions) is warranted per MILPERSMAN 1910-304. ” Per Article 1910-304, an Honorable discharge should be assigned when “the quality of the member’s service generally met the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. Per the same article, a General (Under Honorable Conditions) discharge should be assigned when “the quality of the member’s service has been honest and faithful; however, significant negative aspects of the member’s conduct or performance of duty outweighed positive aspects of the member’s service record. ” A review of the Applicant’s evaluations over 5 ½ years of service revealed an overall trait average of 3.17 on a 5.0 scale, which meets the standard of acceptable conduct. However, his service record included eight incidents of unauthorized absence in addition to his three NJPs, civilian conviction, and three Page 13 counselings. Clearly, his command gave the Applicant ample opportunities to correct his behavior. It is the NDRB’s finding that the Applicant’s service did not m e et the conditions for an Honorable discharge.

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 .


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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