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NAVY | DRB | 2010_Navy | ND1000672

Original file (ND1000672.rtf) Auto-classification: Denied

ex-AWF3, USN

Current Discharge and Applicant’s Request

Application Received: 20091228

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)        20021016 - 20030622     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030623     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090325      Highest Rank/Rate: AWF2
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 76
Evaluation M arks:         Performance: 3.3 ( 6 )      Behavior: 2.1 ( 6 )        OTA: 3.02

Awards and Decorations ( per DD 214):      EAWS NAI

Periods of UA /C ONF :

NJP :
- 20060604 :       Article 134 (Wrongfully consuming alcoholic beverages while under the legal age of 21)
         Awarded : Susp ended:

- 20090111 :       Article (Disorderly conduct, drunkenness)
         Awarded : Susp ended:

S CM : SPCM:

Arrest s :
- 20060 613 :       Charges: D riving under the influence (D UI ) with a BAC .08 - .14)
         Sentence: Plead guilty, paid fine in the amount of $866 and 1 day in jail.

- 20081106 :       Domestic dispute at Mount Vernon Jail House and released to the VR-61 SDO the same day.

- 20090 101 :       Assaulted two Correctional Officers at Kings County Jail - apprehended by the Seattle Police Department earlier that evening for misdemeanor assault of a local civilian. Charges pending investigation and adjudication, civilian authorities are maintaining jurisdiction of offense.

C C :
- 20090211 :       Offense: Driving under the influence (DUI) with a BAC .08 - .14)
         Sentence : Sentence suspended for 60 months, 365 days of jail and suspended 364 days; fine of $5 , 000 with $4 , 134 suspended. Fine $866 .

Retention Warning Counseling :
- 20060604 :       For CO’s NJP of 20060604 for violation of A rticle 134, consuming alcoholic beverages while under 21.

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 s of the UCMJ, Article 111 (Drunken driving) and 128 (Assault) .

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

Applicant’s Issues

1. The Applicant would like to reenlist in the Armed Forces.
2 . The Applicant contends his discharge is inequitable , because he was acquitted of both felony charges.
3. The Applicant contends he was given another year of service against his will.

Decision

Date: 20110317 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 and for o f the Uniform Code of Military Justice (UCMJ): Article 134 (Wrongfully consuming alcoholic beverages while under the legal age of 21) and Article (Disorderly conduct, drunkenness) . The Applicant was arrested three times by civilian law enforcement for multiple incidents and had a civilian conviction for driving under the influence of alcohol. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant would like to reenlist in the Armed Forces. 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 Board for Correction of Naval Records 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.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because he was acquitted of both felony charges. On 6 February 2009, the Applicant was notified for administrative separation processing for the following reasons: Misconduct (Pattern of Misconduct), Misconduct (Commission of a Serious Offense), Misconduct (Civilian Conviction) , and Alcohol Rehabilitation Failure . He was discharged for Misconduct (C ommission of a S erious O ffense ), which does not require adjudication by nonjudicial or judicial proceedings or civilian conviction . The offense , however, must be substantiated by a preponderance of evidence. His post-service acquittal on two felony charges has no bearing on his discharge and characterization of service from the Navy. The Applicant was discharged due to Commission of a Serious Offense, which likely was the c ivilian drunk driving incident in February 2009. From reviewing the Applicant’s service record, it is clear that the Applicant’s command gave him multiple opportunities to correct his behavior and ultimately showed leniency by discharging him with a General (Under Honorable Conditions) discharge. The NDRB determined that an upgrade would be inappropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends he was given another year of service against his will. The NDRB carefully examined the Applicant’s enlistment documentation and found the documents and obligated service to be consistent with 6 years of service. From the Applicant’s commanding officer’s comments on his administrative separation recommendation, he stated that the Applicant “had been approved for Early Release to further civilian education and was scheduled to commence college at the University of Texas in Arlington, using his GI Bill beginning in

March 2009.” Further, the CO stated that while the Applicant “performed admirably during working hours, he failed to do so in his personal life” and that “continued misconduct and alcohol-related issues since May 2006 have exhausted all opportunities for a second chance.” The NDRB determined that this issue is without merit. Relief denied.

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, Employment/Educational Opportunities 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 | ND1000672

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