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NAVY | DRB | 2010_Navy | ND1000743
Original file (ND1000743.rtf) Auto-classification: Denied

ex-YN3, USN
Current Discharge and Applicant’s Request
Application Received: 20100120
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)        19970908 - 19970929     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19970930     Age at Enlistment:
Period of E nlistment : Years 19 MONTHS Extension
Date of Discharge: 20030404      Highest Rank/Rate: YN3
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 31
Evaluation M arks:         Performance: 2.5 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.17

Awards and Decorations ( per DD 214):      GC M E SWS EAWS (2) LoC MAAB(silver)

Periods of UA /C ONF :

NJP :

S CM :

SPCM:

C C :

Arrested:
- Date unknown :   Offense: D riving under the influence (DUI) in 2002 – no conviction
         Sentence : NONE

- 20030301 :      Offense: (DUI) - Dismissed; only convicted of having an open container of alcohol
Sentence : Fine, 6 months of limited probation

Retention Warning Counseling :
- 20020717 :       For conviction in Civil District Court for driving under the influence (DUI) of alcohol and below average grades (Quality of Work and Personal Job Accomplishment) on annual performance evaluation, dated 20010616 through 20020615 .

- 20020812 :       For evi ction from Bachelor Enlist ed Quarters after failing your most recent room inspection on 20020808, after being verbally counseled for a previous failure and informed of the consequences if you failed another inspection.

NDRB Documentary Review Conducted (date):        20041015
NDRB Documentary Review Docket Number:   ND04-00420
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 .
A . 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 .

B . Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.


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

Applicant’s Issues

 1. The Applicant contends his discharge is unjust and inequitable based on his record of service.

Decision

Date: 2011010 3 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, two unauthorized absences, which did not result in nonjudicial punishment s, and incidents of alleged driving under the influence (DUI) of alcohol. Based on the alleged offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant exercised or waived 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.

 : (Decisional) ( ) . The Applicant contends his discharge is unjust and inequitable based on his record of service. The presumption of regularity of governmental affairs was applied by the NDRB in this case in the absence of a complete discharge package. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned that an impropriety took place during the Applicant’s discharge, which ultimately defined his narrative reason for discharge that in turn defined his characterization of service. The Applicant was discharged with a General (Under Honorable Conditions) characterization of service for a Pattern of Misconduct. Per Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT , “ Members may be separated when during the current enlistment they have (1) two or more non-judicial punishments, court-martial, or civil convictions (or combination thereof); (2) three or more unauthorized absences, each is more than 3 days, but less than 30 days duration; (3) a set pattern of failure to pay just debts; or (4) a set pattern of failure to contribute adequate support to dependents or failure to comply with civil court orders, decrees, or judgments concerning dependent support; and (5) violated a NAVPERS 1070/613, Administrative Remarks counseling/warning (MILPERSMAN 1910-204) specifically addressing the non-support.
A member must have violated a NAVPERS 1070/613 warning prior to processing. ” T he Applicant was never the subject of nonjudicial punishment or any type of court-martial proceedings while in the Navy. The Applicant provided a copy of his entire driving record, and there was no record or evidence of any DUI conviction at any time . The NDRB determined that the command wrongly assumed his guilt when it issued a Page 13 for the first alleged DUI in 2002 and discharged him before a conviction on the second DUI arrest, which was subsequently dismissed after his discharge. As a result, the command clearly did not meet the elements required for the Applicant to be separated for a Pattern of Misconduct. Thus, the NDRB discerned by unanimous v ote ( 5-0 ) that the narrative reason of discharge was improper and should be changed to Secretarial Authority . Additionally, the NDRB ruled by unanimous vote (5-0) that the App licant’s character ization of service warrants a change to Honorable. Relief granted.

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 re ason for separation shall change to .


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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