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NAVY | DRB | 2010_Navy | ND1001062
Original file (ND1001062.rtf) Auto-classification: Denied

ex-AZ3, USN
Current Discharge and Applicant’s Request
Application Received: 20100322
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)        19970716 - 19980112     Active:   19980 113 - 20021227 HON

Period of Service Under Review:
Date of Current Enlistment: 20021228     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040824      Highest Rank/Rate: AZ2
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 62
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.50 (2 ) , Incomplete

Awards and Decorations ( per DD 214):      (2) KCM

Periods of UA /C ONF : UA 20040716 - 20040804 (19 days)

NJP :
- 200 4 0 806 :      Article (UA), 2 specifications
         Article 92 (Failure to obey order, regulation)
          Awarded : (to E- 4 ) Susp ended: None

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 19990820 :       For deficiencies in performance and/or conduct, unauthorized absence.

- NFIR :   (* extracted from COMNAVPERSCOM 28 Feb 2002 msg directing Page 13 entry in Applicant’s record)
         For IAW COMNAVPERSCOM Millington TN msg 281401Z Feb 02, you are being retained in the naval service despite your failure to successfully complete alcohol rehabilitation due to your alcohol dependency/abuse.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY MARINE CORPS ACHIEVEMENT MEDAL NATIONAL DEFENSE SERVICE MEDAL ARMED FORCES EXPEDITIONARY MEDAL SEA SERVICE DEPLOYMENT RIBBON (2) NATO MEDAL (2) KOSOVO CAMPIAGN MEDAL GOOD CONDUCT MEDAL (2) FLAG LETTER OF COMMENDATION LETTER OF COMMENDATION ”

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19980113 UNTIL 20021227 ”

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), 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 .



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

Applicant’s Issues

 1.       Applicant seeks an upgrade for VA education benefits.
2 .        Applicant contends her overall performance in service warrants consideration for upgrade to the character of service.
3 .       Applicant seeks an upgrade based on post-service achievements.

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 aff airs 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 sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warnings (Aug 1999, UA) and (NFIR , alcohol rehabilitation failure, but as directed by COMNAVPERSCOM msg 281401Z Feb 02 ) and nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 8 6 ( Absence without leave, 2 specifications NFIR) and Article 92 ( Failure to obey an order or regulation, specifics NFIR). The Applicant also had a pre-service waiver for alcohol abuse/underage drinking violations (Nov 1996, Oct 1997) prior to entering the Navy. The record also reflected the Applicant had been involved in an alcohol - related incident (Mar 2001) during her first enlistment , which resulted in her attending IMPACT training in Apr 2001 . On 9 Sep 2001, the Applicant received a DUI and was referred for intensive alcohol rehabilitation outpatient treatment by the NAS Jacksonville FL Alcohol Rehabilitation Center. The Applicant complete d outpatient treatment on 11 Dec 2001. On 29 Jan 2002, the Applicant’s Commanding Officer submitted a request to Commander, Navy Personnel Command ( PE RS) requesting that the Applicant’s administrative separation processing be halted in order to retain her in the service. On 28 Feb 2002, PERS d irected that the Applicant be retained and given a Page 13 retention warning for alcohol rehabilitation failure. In August 2004, the Applicant was found guilty of violations of UCMJ Articles 86 and 92, and subsequently processed for administrative separation. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority . The Applicant was separated from the Navy on 24 Aug 2004 with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.

: (Nondecisional) The Applicant seeks an upgrade to obtain VA education benefits. 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.
: (Decisional) ( ) . The Applicant contends her overall performance in service warrants consideration for upgrad e to the character of service. Per the U.S. Navy Military Personnel Manual (MILPERSMAN), a Sailor may be awarded a General ( Under Honorable Conditions ) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. The Applicant ’s record of service included two retention warnings for UA and alcohol rehabilitation failure , which carried forward from her first period of enlistment. The record also reflects the Applicant’s failure of alcohol rehabilitation treatment and NJP in Aug 2004 for violations of UCMJ Article s 86 and 92. After careful consideration of all the evidence, the board determined that the character of service awarded the Applicant upon discharge was equitable and in accordance with the orders and directives in effect at the time of h er separation. Relief denied.




: (Decisional) ( ) . The Applicant seeks an upgrade based on post-service achievements. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty 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 the civilian life subsequent to leaving the service. The Applicant submitted documentary evidence to include: vocational school enrollment and transcripts, income tax return, character and reference letters, marriage and birth certificates, and a personal letter to the Board. Though not submitted, documents could have included: verifiable employment record ; letter (s) of recommendation from h er employer ( s ) ; evidence of an alcohol- free life style (completion of rehab/proof s he attend s AA meetings); certification of non-involvement with civil authorities ; evidence of financial stability (home ownership/home rental history, credit card payments); and documentation of community/church service as applicable . After careful examination and consideration of the evidence, the Board determined that th is issue did not provide a basis for which relief could be granted. Relief denied.

Summary: In reviewing the Applicant’s records , the Board noted that specific documentation and evidence was missing from the records to support the basis of discharge, P attern of M isconduct. A fter a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and documentary evidence submitted by the Applicant in support of her claims , the Board found that the character of service was equitable, but a lack of sufficient documentary evidence existed to support the MILPERSMAN requirement for a P attern of M isconduct discharge. Since the Applicant could have been separated for C ommission of a S erious O ffense (violation of Article 92) and due to the fact the NDRB did not have the administrative separation package documentation available to determine what separation basis notification(s) were provided to the Applicant, the Board determined that a change to the narrative reason for discharge was warranted under Secretary of the Navy Authority . Therefore, the awarded characterization of service shall and the narrative reason 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 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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