Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000227

Original file (ND1000227.rtf) Auto-classification: Denied

ex-BUCN, USN

Current Discharge and Applicant’s Request

Application Received: 20091028

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)        20010921 - 20010926     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010927     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050525      Highest Rank/Rate: BUCN
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 59
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 2.94

Awards and Decorations ( per DD 214):      Rifle WITH MARINE CORPS EMBLEM

Periods of UA /C ONF :

NJP : S CM : SPCM:

C C :
- 20041005 :       Offense: Driving while intoxicated
         Sentence : Fined $872.00, probation 12 months which will be suspended with the completion of Substance Abuse Counseling/Treatment, MASEP/VIP Classes and pay all of the fines.

Retention Warning Counseling :
- 20020712 :       For drinking while under the legal drinking age (21), having alcohol in you r possession while on board a U. S. Naval vessel, and unauthorized entry into female berthing areas after prescribed times.
- 20040520 :       For exceeding height/weight and body fat limits and failure to meet Physical Readiness Test standards .

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 11, effective 26 April 2005 until 19 May 2008, 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. The Applicant contends his discharge is inequitable , because it w as based on a one-time DWI .

Decision
Date: 201101 20 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 Board did complete 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 included NAVPERS 1070/613 (Page 13) warning s for drinking while under the legal drinking age (21), having alcohol in your possession while on board a U. S. Naval vessel, unauthorized entry into female berthing areas after prescribed times , and for exceeding height/weight and body fat limits and failure to meet Physical Readiness Test standards. Additionally, he also was subject to a civilian conviction for driving while intoxicated (DWI). Based on the offense committed by the Applicant, command administratively processed for separation. The Applicant was notified that he was being recommended for separation due to misconduct due to a pattern of misconduct and misconduct due to civilian conviction. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel and to request an administrative board , but waived his rights to submit a written statement for consideration by the separating authority . The Applicant appeared before the administrative separation board (ASB) on 25 June 2008. The ASB determined by a unanimous vote, 3-0, that the preponderance of the evidence supported the notification for separation, and the ASB recommended that the Applicant should be separated from the Navy with a General (Under Honorable Conditions). The command and separating authority approved the ASB’s recommendations and discharged him accordingly.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on a one-time DWI. Despite a Sailor’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. Per Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until 27 July 2005, Article 1910-144, S EPARATION BY REASON OF MISCONDUCT - CIVILIAN CONVICTION , it is appropriate to discharge a servicemember for a DWI. The Applicant’s subsequent refusal to undergo Level II Intensi ve Outpatient alcohol treatment likely aggravated the situation and contributed to the command’s decision to separate the Applicant. Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The NDRB determined that , per Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT , the Applicant did not meet the requirements for discharge because of a Pattern of Misconduct. However, when the command processed him for separation, he was also notified of potential separation for misconduct due to civilian conviction . Per Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until 27 July 2005, Article 1910-144, S EPARATION BY REASON OF MISCONDUCT - CIVILIAN CONVICTION , the Applicant did meet the requirements for separation for this reason . As a result, the NDRB determined that the narrative reason was improperly assigned as Pattern of M isconduct and that it shall change to Misconduct (Civilian Conviction).

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 but the narrative re ason for separation shall change to . 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 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 | 2010_Navy | ND1000227

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