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NAVY | DRB | 2009_Navy | ND0902042

Original file (ND0902042.rtf) Auto-classification: Denied

ex-BM2, USN

Current Discharge and Applicant’s Request

Application Received: 20090714

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)        19960830 - 19960916     Active:          19960917 - 20010621

Period of Service Under Review:
Date of Current Enlistment: 20010622     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040824      Highest Rank/Rate: BM2
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 88
Evaluation M arks:         Performance: 3.8 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 3.39

Awards and Decorations ( per DD 214):      Pistol (2) (3) (2) (3) ESWS

Periods of UA /C ONF :

NJP :

S CM :

SPCM:

C C :

- 20040413 :       Offense: DUI first offense. Destruction of government property. Reckless driving.
         Sentence : Drivers license suspended for 1 year. $2,095 in fines. Participate in alcohol education and treatment program. 1 year probation. Serve 1 day in jail commencing 20040413 until 1700, 20040413.

- 20040511 :      Offense: DUI second offense.
         Sentence: Drivers license suspended for 1 year. Right to apply for a restricted license. $500 in fines ($250 suspended). Participate in alcohol education and treatment program. 5 months in jail (suspended for 1 year).

Retention Warning Counseling:

         - 20040413 Civilian conviction for driving under the influence of alcohol (first offense)
         - 20040511 Civilian conviction for driving under the influence of alcohol (second offense)
         - 20040622
         - Undated
NOTE: References to last two Page 13s found in Record of Proceedings of an Administrative Board in Case of BM2 Patrick R. Kibler, USN

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.       Inequitable discharge based on a decision made in haste.
2.       Record of service.

Decision

Date: 20 10 0713             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, two civilian convictions for d riving under the influence, and a Level III alcohol treatment failure. Based on the treatment failure and the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected to consult with qualified counsel and requested an Administrative Board. By a vote of 3-0, the Administrative Board recommended separation with a general discharge.

: (Decisional) ( ) . The Applicant contends that his discharge was inequitable, because his decision to voluntarily drop out of Level III alcohol treatment was made in haste and was made without a full understanding of the ramifications of such an action. In a Medical Record Narrative Summary submitted by Commander Naval Medical Center, Substance Abuse Rehabilitation Program (SARP) on 1 June 2004, it states that the Applicant “signed out of treatment against medical advice after discussing his decision with his command and with the SARP Senior Counselor.” Further, at his Administrative Board, the Applicant admitted that the counselors informed him that if he left the center, administrative actions would be taken against him. The NDRB finds that the Applicant received sufficient notification of the consequences associated with voluntary disenrollment from alcohol treatment.

: (Decisional) ( ) . The Applicant contends that he served honorably for nearly 90 months and received numerous commendations. 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 FAILURE 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. ”

The Applicant’s record showed that in his second enlistment, he was awarded his second Good Conduct medal. Additionally, his overall trait average on evaluations during his second enlistment was 3.39 on a 5.0 scale, which meets the standard of acceptable conduct. After reviewing his record and accomplishments, however, the Administrative Board recommended him for separation based on commission of a serious offense, alcohol rehabilitation failure, and civilian conviction. His commanding officer endorsed the board’s findings, and the Applicant was discharged on 24 August 2004 with a general discharge and a narrative reason for separation of Alcohol Rehabilitation Failure instead of the more serious Misconduct reason. The NDRB confirms the Applicant’s command’s finding that his service did not meet 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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NAVY | DRB | 2009_Navy | ND0902042

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