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NAVY | DRB | 2010_Navy | ND1001268
Original file (ND1001268.rtf) Auto-classification: Denied

ex-STS3 (SS), USN
Current Discharge and Applicant’s Request
Application Received: 20100421
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [COMMISSION OF A SERIOUS OFFENSE]

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19890509 - 198905 17     Active:   198905 18 - 19911117 HON

Period of Service Under Review:
Date of Current Enlistment: 19911118     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950421      Highest Rank/Rate: STS 2 (SS)
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.7 ( 5 )      Behavior: 3.6 ( 5 )        OTA: 3.80
Awards and Decorations ( per DD 214):      Pistol NASR

Periods of UA /C ONF :

NJP :
- 1993062 5 :       Article (Operating a vehicle while drunk , BAC .151 ) , 19930501
         Awarded : Susp ended:

- 19941213 :       Article (Incapacitated for the proper performance of duties (intoxicated) ) , 19941203
         Awarded : (to E-4) Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :
- 19920416 :       For fail ure to meet physical readiness standards of OPNAVINST 6110.1D due to being over fat.
- 19921129 :       For fail ure to meet physical readiness standards of OPNAVINST 6110.1D due to being over fat.
- 19930225 :       For fail ure to meet physical readiness standards of OPNAVINST 6110.1D due to being over fat.
- 19930225: For fail ure to meet physical readiness standards of OPNAVINST 6110.1D due to failing PRT and being
                  out of body fat standards .
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, Awarded or Authorized, should read “ NAVY P ISTOL SHARPSHOOTER SEA SERVICE DEPLOYMENT RIBBON NATIONAL DEFENSE SERVICE MEDAL GOOD CONDUCT MEDAL MERITORIOUS UNIT COMMENDATION N AVAL ARCTIC SERVICE RIBBON LETTER OF COMMENDATION(3) ”

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 890521 UNTIL 911117 ”

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), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 of the UCMJ, Article 111.



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

Applicant’s Issues

 1.        Applicant seeks an upgrade to obtain veteran education benefits.
2.       Applicant contends his command treated him unfairly and that his discharge was improper.

Decision

Date: 20 1 1 06 27             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. The Applicant i dentif ied one decisional issue for the Board ’s consideration . 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 for failing to maintain Navy physical readiness standards (16 Apr 1992, 29 Nov 1992, 25 Feb 1993, 25 May 1994) and for o f the Uniform Code of Military Justice (UCMJ): Article 111 ( Drunken driving, BAC .151, 1 May 1993 ) and Article 134 ( Drunkenness, i ncapacitation for duties through prior indulgence of intoxicating liquor, 3 Dec 1994, reporting topside of submarine as aft line petty officer in charge during underw ay detail under the influence of alcohol ) . The Applicant was referred for Level II Intensive Out patient Alcohol Rehabilitation T reatment (6-29 Jul 1993) after the 1 May 1993 on-base DUI incident. The Applicant’s service record also included evidence of a previous civil DUI, during his first enlistment (Mar 1990), for which he attended Navy Alcohol and Drug Safety Action Program counseling/treatment. The records also indicated he had pre-service waiver s for using marijuana and a disorderly conduct and public drunkenness arrest prior to entering the Navy. Based on the offenses committed by the Applicant, command administratively processed for separation on the basis of alcohol rehabilitation failure and misconduct (commission of a serious offense) . When notified of administrative separation processing using the procedure on 6 Feb 1995 , the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Board, consisting of a Lieutenant Commander, a Lieutenant , and a Senior Chief Petty Officer, convened on 8 Mar 1995. After presentation of all the evidence and facts surrounding the Applicant’s misconduct and his in-service performance , and character witness statements made my members within his chain of command, the Board voted (by 3-0 vote) that the Applicant had committed serious - offense misconduct , (by 3-0 vote) the Applicant was determined to be an alcohol rehabilitation treatment failure , (by 3-0 vote) the Applicant was not recommended f or transfer to the IRR , and (by 2-1 vote) the Applicant was recommended for separation from the Navy with an Under Other Than Honorable Conditions discharge. In the Commanding Officer’s 15 Mar 1995 administrative separation recommendation memorandum to the Bureau of Naval Personnel (BUPERS) , he recognized the Applicant’s strong in-service performance and requested consideration be made for a General (Under Honorable Conditions ) discharge. On 3 Apr 1995, BUPERS directed the Applicant be separated with a General (Under Honorable Conditions) discharge due to Misconduct ( C ommission of a S erious O ffense). The Applicant was discharged from the Navy on 12 Apr 1995.

: (Nondecisional) The Applicant seeks an upgrade to obtain veteran education benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 : (Decisional) ( ) . The Applicant contends his command treated him unfairly and that his discharge was improper. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention

the command treated him unfairly. The Applicant’s service in his current enlistment contained four retention warning s and two NJP s for violation of Articles 1 11 and 134. Violation of UCMJ Article 111 is considered a “ serious offense ” per the UCMJ for which a punitive discharge ( i.e., Bad Conduct or Dishonorable ) is authorized if adjudicated at trial by courts-martial . Neither of the Applicant’s Commanding Officers (at the time of each DUI incident that occurred during his first and second enlistments) chose to refer him to trial by courts-martial for his DUI offenses. After the second offense, the Applicant was instead processed for administrative separation. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Sailors , especially considering his grade and length of service , and falls short of what is required for an upgrade to Honorable . After a detailed and thorough examination of the Applicant’s service record, the Board found this issue to be without merit 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 the administrative separation p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .


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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