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NAVY | DRB | 2010_Navy | ND1001049
Original file (ND1001049.rtf) Auto-classification: Denied

ex-NC2, USN
Current Discharge and Applicant’s Request
Application Received: 20100317
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)        19960517 - 19960522     Active:   19960523- 20001201 HON
                  USN 20001202-20040331 HON
Period of Service Under Review:
Date of Current Enlistment: 20040401     Age at Enlistment: 39
Period of E nlistment : Years Extension
Date of Discharge: 20080305      Highest Rank/Rate: NC1
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 3.0 ( 5 )      Behavior: 2.8 ( 5 )        OTA: 3.06 (5)

Awards and Decorations ( per DD 214):      (3) (4) (4) (3) (2)

Periods of UA /C ONF :

NJP :

- 200710 0 5 :      Article (Failure to obey order regulation), 2 specifications
         Specification 1: CTF70 Liberty Policy (24 Jan 06), consuming alcohol without Liberty Buddy, 20071003
         Specification 2: Violated CO approved Liberty Plan, 20071003
         Article (Assault consummated by battery) , struck MA3 in abdomen, 20071003
         Article 134 (Disorderly conduct, drunkenness) , 20071003
         Awarded: (to E-5) Suspended:

S CM :

SPCM:

C C :

Retention Warning Counseling :

- 19971015 :       For deficiencies in your performance and/or conduct; found guilty at CO’s NJP of Article 134.

- 20011205 :       For Physical Fitness Assessment (PFA) failure (Run time 17:24).

- 20071005 :       For deficiencies in your performance and/or conduct; CO’s NJP this date for VUCMJ Article 92 – Failure to obey lawful general order, Article 92 – Failure to obey another lawful order, Article 128 – Assault upon a person in the execution of law enforcement duties, and Article 134 – Disorderly conduct, drunkenness.




Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          Net Active Service This Period , should read: “ YEAR(S): 03, MONTH(S): 11, DAY(S): 05 ”
         Block 12d, Total Prior Active Service, should read: “YEAR(S): 07, MONTH(S): 10, DAY(S): 09”
         Block 18, Remarks, should read: “CONT INUOUS HONORABLE ACTIVE SERVICE FROM 19960523 UNTIL 20040331 ”

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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 29 April 2005 until 14 May 2008, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION FAILURE.

 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.        Applicant seeks an upgrade to obtain v eteran s benefits.
2.       Applicant contends his discharge process was conducted improperly, thereby affecting the character of service determination made by the Administrative Separation Board.
3.       Applicant contends he received a Page 13 Retention Warning, which should have allowed him to remain in service and correct his deficiencies.
Decision

Date: 20 1 1 04 28             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 discharg e 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. 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 included NAVPERS 1070/613 (Page 13) retention warnings and for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order, 3 Oct 2007, 2 specifications: violated CTF70 Liberty Policy prohibiting consumption of alcohol without a liberty buddy and violated CO Approved Liberty Plan allowing Applicant to depart ship while in a Class ‘C’ Restricted Liberty status and proceed home only to assist family move into off-base housing ) . The record indicated that the Applicant reenlisted on 1 Apr 2 004 after completing 7 years and 10 months of continuous active duty service through two previous enlistments. During his first enlistment, the Applicant received a Page 13 retention warning (15 Oct 1997) for being found guilty of Article 134 (Drunk and disorderly) at CO’s NJP due to an alcohol - related incident in September 1997. The records indicate he was recommended for Level I Alcohol Rehabilitation Treatment (ART) . Th e Applicant was later referred to Level II ART in September 2000, th ough the records do not indicate the circumstances that warranted referral. In October 2007, the Applicant was given leave approval to depart the ship and assist his family in moving into off-base housing near Yokosuka , Japan . On 3 Oct 2007, he was observed out in town by a LTJG to have stumble d and f all en , causing a laceration to the back of his head. The LTJG realized he was a Sailor and proceeded to assist him to the front gate where Shore Patrol personnel assisted in applying first aid and calling the ambulance due to visible blood loss from the head laceration. While assisting the Applicant with his injury, he became extremely combative and verbally threatened those around him. A female MA3 treating his laceration tried to calm him , at which point he punched her in the lower abdomen. He was restrained and then transported to the Naval Hospital for evaluation and treatment. Sometime after arrival to the ER, the record noted that the Applicant lost control and urinated, defecated , and vomited on himself. Due to his combative and threatening conduct, he was placed in restraints and evaluation and treatment continued. The medical report indicated the Applicant’s BAC to be .300. Later in the evening, the MA3 who the Applicant had struck in the abdomen reported to medical after noticing vaginal bleeding. After evaluation, she was hospitalized for uterine bleeding as a result of the blunt force trauma inflicted by the Applicant. Based on the serious offenses committed by the Applicant, the command had the option to refer charges on him for trial by punitive c ourt- m artial ( Special or General) , which could have resulted in a felony conviction, up to three years confinement , and a Bad Conduct or Dishonorable Discharge. The Applicant’s command opted instead to process him for administrative separation . When dual- notified of administrative separation processing for C ommission of a S erious O ffense and A lcohol R ehabilitation F ailure (ARF) using the procedure on 11 Oct 2007 , the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board (Admin Board). On 13 Dec 2007, u pon completion of the Admin Board, the Senior Member notified the Applicant’s commanding officer of the findings and recommendations : The Applicant committed s erious o ffense m isconduct (vote 3-0); the Applicant was an alcohol rehabilitation treatment failure ( vot e 3-0); the Applicant should be separated from service (vote 3-0); and the Applicant should receive a General (Under Honorable Conditions) discharge (vote 3-0). On 19 Dec 2007, the Applicant’s Defense Counsel submitted a Deficiency Letter through the

chain of command on the basis that the Applicant was notified of pending administrative separation processing via the Admin Board procedure , which lists the least favorable cha racter of service available as Under Other Than Honorable Conditions for C ommission of a S erious O ffense . The Defense Counsel contended that since the Applicant was actually separated for ARF , which rates a General (Under Honorable Conditions) discharge as the least favorable character of service , that the Under Other Than Honorable Conditions listed for the serious offense somehow tainted the Admin Board members or established an incorrect lower limit for proper characterization of service. The staff Judge Advocate Officer reviewed the issue and determined it to be without merit.

: (Nondecisional) The Applicant seeks an upgrade to obtain v eteran s benefits. The U.S. Department of Veterans Affairs (VA) or state VAs 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.
: (Decisional) ( ) . The Applicant contends his discharge process was conducted improperly, thereby affecting the character of service determination made by the Administrative Separation Board. The NDRB conducted a thorough review of all the available evidence . The service records indicate that the Applicant was dual-notified for basis of separation ( C ommission of a S erious O ffense and A lcohol R ehabilitation F ailure) and the Administrative Board notification procedure was used , which listed the least favorable character of service as Under Other Than Honorable Conditions and is in accordance with U.S. Navy Military Personnel Manual (MILPERSMAN) section 1910-142. Since the Applicant was given a NAVPERS 1070/613 Retention Warning for the serious offenses on the same day as his NJP for those offenses (5 Oct 2007), the Separation Authority could only separate him for the A lcohol R ehabilitation F ailure , which was determined (by a 3-0 vote) during the Admin Board hearing. The MILPERSMAN lists the least favorable character of service for ARF as General (Under Honorable Conditions). Based on the facts and circumstances surrounding the Applicant’s willful and egregious misconduct, the Board determined th at an Honorable character of service would have been so inappropriate that the only choice available was a General (Under Honorable Conditions) , discharge which the Admin Board had voted for 3-0. Accordingly, the Board found this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends he received a Page 13 Retention Warning, which should have allowed him to remain in service and correct his deficiencies. The Applicant did receive a NAVPERS 1070/613 Retention Warning on 5 Oct 2007, the same day he was found guilty at commanding officer ’s NJP for serious violations of the UCMJ while off-base near Yokosuka, Japan. On 11 Oct 2007, the Applicant was dual-notified of pending administrative separation processing for C ommission of a S erious O ffense and A lcohol R ehabilitation F ailure. Since the Separation Authority chose to discharge the Applicant for A lcohol R ehabilitation F ailure , which is mandatory per the MILPERSMAN, the retention warning , though binding on the Navy for the COSO charges, did not apply to ARF. Therefore, the Board found the discharge was proper and in accordance with the applicable orders in effect at the time of separation, and did not provide a basis for which relief could be granted. Relief denied.

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 separation 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 for additional information.



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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