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NAVY | DRB | 2010_Navy | ND1000187
Original file (ND1000187.rtf) Auto-classification: Denied

ex-MM3, USN
Current Discharge and Applicant’s Request
Application Received: 20091026
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)        20030326 - 20040216     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20040217     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090904      Highest Rank/Rate: MM2
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 93
Evaluation M arks:         Performance: 3.4 ( 10 )     Behavior: 3.0 ( 10 )       OTA: 3. 28 ( 10 )

Awards and Decorations ( per DD 214):      Pistol NEM KDSM E nlisted Submarine Insignia, Scuba Diver Underwater Insignia

Periods of UA /C ONF :

NJP :

- 20050119 :      Article (Failure to obey order, regulation , consuming alcohol under age of 21 o/a 14 Jan 2005 )
         Awarded: Suspended:

- 20070403 :      Article ( Drunken operation of a vehicle , 28 Mar 2007, BAC .135-.145 )
         Awarded: Suspended:

- 20090727 :      Article ( Absence without leave , 0800-0935 on 26 Jul 2009 )
         Article ( Failure to obey order, regulation on 26 Jul 2009 )
         Article ( Drunken operation of vehicle on 26 Jul 2009 , BAC .084-.135 )
         Article ( Drunkeness, reported for duty incapacitated on 26 Jul 2009 )
          Awarded: Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
“ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE] ”
“ MISCONDUCT (SERIOUS OFFENSE) ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION 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 92 and 111 .



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

Applicant’s Issues

 1.        Applicant seeks upgrade to obtain GI Bill benefits to pursue an environmental engineering degree.
2.       Applicant contends his only misconduct was alcohol related in an otherwise strong record of service.
3.       Applicant contends portable breathalyzer use and results were utilized improperly in his discharge.
4.       Applicant contends he was not afforded treatment for alcohol dependency prior to separation from the Navy .
5.       Applicant contends if not for his sacrifice in enlisting in the nuclear engineering field for six years, he would have completed obligated service at four years with an H onorable characterization of service.
Decision

Date: 20 10 1110             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 identif ied four decisional issues for the Board’s consideration. T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service was noted to be partially incomplete as evidenced by lack of NAVPERS 1070/613 (Page 13) warning and counseling form ( s ) and court records of memoranda on commanding officer’s nonjudicial punishment , conducted 3 Apr 2007 , for violation of UCMJ Article 111 (Drunken operation of a vehicle) . The record contain ed additional for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , reporting for duty 1 hour and 35 minutes late on 26 Jul 09 ) ; Article 92 ( Failure to obey order, regulation by consuming alcohol under the age of 21 o/o 26 Jul 09 ) ; Article 111 ( Drunken driving, BAC .084-.135, 26 Jul 09 ); and Article 134 ( Drunk, incapacitated for duty on 26 Jul 09 ). The Applicant signed the Navy policy on illegal drug use and alcohol abuse on 26 Mar 2003 , acknowledg ing he understood the policy and the consequences of violation. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant elected to exercise his rights to consult with qualified counsel, submit a statement to the separation authority (dated 5 Aug 09), obtain copies of documents submitted to the separation authority , and request a General Court-Martial Convening Authority review.

The Applicant provided documentation that included: two character reference l etters from a Senior Chief Petty Officer and 1st Class Petty Officer, the Applicant’s 5 Aug 2009 written statement submitted to the separation authority, and the Applicant’s written statement of issues submitted to the NDRB. Though not submitted, additional documents could have included: ; letter(s) of recommendation from his employers; , evidence of a n alcohol- free life style ; evidence of financial stability ; certification of non-involvement with civil authorities ; college or vocational school transcripts; documentation of community or church service ; and m arriage or child birth certificate s ( as applicable). The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty service was indicative of the Applicant's character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. 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. Without any additional post-service documentary evidence to consider , the Board determined post-service conduct and achievement could not provide a basis for which relief could be granted.




: (Nondecisional) The Applicant seeks an upgrade to obtain GI Bill benefits to pursue an environmental engineering degree. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. Additionally, t he 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. Therefore, t his issue does not serve to provide a foundation upon which the Board can grant relief.

 : (Decisional) ( ) . The Applicant contends his only misconduct was alcohol - related in an otherwise strong record of service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s violations of UCMJ Article 92 (Failure to obey an order) and 111 (Driving drunk) on 27 July 2009 met this standard and are considered serious offenses, punishable by a minimum of six months confinement and a B ad C onduct discharge if adjudicated at a punitive court-martial (special or general) . The command did not pursue a punitive discharge but opted instead for the more lenient administrative separation. Since an administrative discharge is not punishment, the decision to administratively separate a service member is made independently of and does not require adjudication at court-martial or nonjudicial punishment. The characterization of service is a description of the total service provided during the member’s enlistment. When the service of a member of the n aval s ervice has been honest and faithful, it is appropriate to characterize that service as H onorable. A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. Th ough the Applicant’s evaluation records reflect an overall training average of 3.28 (10 occasions) with positive comments in block 43 , his service was marred by three NJPs for violations of the UCMJ . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors and falls far short of what is required for an upgrade in the characterization of service.
: (Decisional) ( ) . The Applicant contends portable breathalyzer use and results were utilized improperly in his discharge. He states the command utilized the breathalyzer improperly to test his breath for disciplinary purposes, a clear violation of the direction stated in COMSUBPAC Joint Letter 5810 (8 Jul 09) , which allows breathalyzer use only for inspections and ensuring fitness for duty. He further claims the command did not properly train personnel in the use of the breathalyzer and claims that the same device malfunctioned later the same day he had been tested. The NDRB is not an investigative body and must presume regularity in the conduct of government affairs unless substantial, credible evidence is provided to rebut the presumption. In the command preliminary investigation “Report and Disposition of Offenses” ( dated 27 July 2009 ) , the investigator details the circumstances surrounding the Applicant’s claim. On 26 Jul 2009, the Applicant failed to report for duty at 0800. At 0935 he arrived at work smelling of alcohol and t he portable breathalyzer was utilized to make a preliminary determination on whether the Applicant was fit to stand his duties. The first reading was BAC .155 but shortly after obtaining the reading it was discovered that the Applicant had candy in his mouth. The operator was informed that for proper reading/accuracy it was required to have at least a 20 - minute period of time between food consumption and the breathalyzer reading. After initial conversation between the Applicant and involved personnel from within the command’s leadership, the command prepared to give the Applicant another breath test. At this time , he was observed placing gum in his mouth. He was directed to remove the gum, placed under direct supervision for 20 minutes, and another breath test was performed at 1045 , resulting in a reading of BAC .135. The command then referred the Applicant to the P oint Loma clinic for a Fitness for Duty exam. The investigator reported that the Applicant tested with a BAC .084 at 1150 . Based on the evidence in the command investigation findings, the Board determined that the command actions involving the circumstances surrounding his offenses committed on 2 6 Jul 2009 were in keeping with the app licable orders and directives. Whether the breathalyzer operator was properly trained or if the readings were accurate or not, the BAC reading from the P oint Loma clinic, which took place more than two hours after he initially reported for duty, still indicated a BAC of .084 , which is over the legal limit in California. The Board found his claim s to be suspect in fact , irrelevant to his administrative separation for commission of a serious offense, and determined this issue to be without merit.

Issue 4 : (Decisional) ( ) . The Applicant contends he was not afforded treatment for alcohol dependency prior to separation from the Navy . The Applicant’s service record does not reflect whether or not he was offered and whether he refused or accepted follow-on treatment for alcohol dependency after his third documented alcohol - related incident (second DUI) during this enlistment. The Applicant references OPNAVINST 5350.4D , which requires commands to offer treatment for substance dependency (not Prevent or Impact) prior to administratively separating a service member. The OPNAV instruction also specifically states that processing for administrative separation is mandatory after a second DUI occurs in a service member’s career. Since the Applicant was found guilty of his second in-service DUI at Captain’s Mast on 27 Jul 2009, this requirement was superseded and thereby not required. After considering the available evidence, the Board determined this issue to be without merit.


Issue 5 : (Decisional) ( ) . The Applicant contends if not for his sacrifice in enlisting in the nuclear engineering field for six years, he would have completed obligated service at four years with an H onorable characterization of service. The Applicant’s enlistment records reveal he accepted a six - year enlistment obligation in exchange for the Nuclear Engineering rating and an enlistment bonus of $12,000. On 26 March 2003, he signed both the Enlistment Guarantees and Nuclear Field Enlistment Bonus Statement of Understanding forms acknowledging his complete understanding of his obligation of service and the performance expectations of the special and highly select rating. The NDRB recognizes that serving in the U.S. Navy is challenging. Nevertheless, members of the naval service and the nuclear submarine community are expected to uphold the high standards of the Navy and conduct themselves accordingly. The Applicant applied and was selected for a rating in nuclear engineering , which demanded he be personally and professionally responsible at all times. His six - year enlistment contract and generous enlistment bonus accounted for the nearly two years of demanding education required of this rating and the highly specialized and costly training associated with this field. After thorough examination of the available evidence to include the Applicant’s record of service, the Board determined that the Applicant failed to maintain the high standards of conduct expected of all Sailors , especially considering his specialty and training, and falls far short of what is required for an upgrade in characterization of service.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and administrative 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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