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NAVY | DRB | 2010_Navy | ND1001299
Original file (ND1001299.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20100419
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)        20080129 - 20080527     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080528     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090605      Highest Rank/Rate: SN
Length of Service : Y ear M onth s 06 D a ys
Education Level: 13      AFQT: 46
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 1.0 ( 2 )        OTA: 2.67 (2)

Awards and Decorations ( per DD 214):     

Period of UA /CONF : 20080809 - 2008081 1 (2 d ays)                   CONF: NONE

NJP : 3

- 20080815 :       Article (Absence without leave) , 20080811
         Article (Failure to obey order or regulation, failure to adhere to liberty regulations)
         Awarded: (to E-2) Suspended:

- 2009030 9 :      Article 86 (Absence without leave, extracted from administrative separation package)
         Article 134 (General article, disorderly conduct, drunkenness)
          Awarded: RESTR EPD FOP RI R (to E-1) Suspended: RIR (suspend 6 months)
         * Vacated 20090511 due to further misconduct

- 200905 20 :      Article 112 (Drunk on duty, BAC .079, extracted from AdSep package) , 20090504
         Awarded : Susp ended:

S CM : NONE       SPCM:    C C :

Retention Warning Counseling : 1

- 2008081 5 : For violations of UCMJ Article 92 (Failure to obey an order) and 86 (Absence without leave)

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

          “ TL: 08 AUG 09 TO 08 AUG 11 ”

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 23, effective 20 May 2008 until 9 November 2009, 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 contends his discharge was improper , because he was wrongfully accused by San Diego Police via false police reports.
2.       Applicant contends his discharge was improper , because he was not charged and prosecuted in a San Diego court.

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 identif ied two decisional issues 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 one NAVPERS 1070/613 (Page 13) retention warning and three for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications) , Article 92 ( Failure to obey an order or regulation, 11 Aug 2008, failed to adhere to liberty regulations), Article 112 ( Drunk on duty, 4 May 2009, BAC .079 while attending alcohol abuse screening appointment), and Article 134 (Disorderly conduct, drunkenness). The Applicant also had a pre-service waiver for third degree assault and a drug waiver for using marijuana prior to entering the Navy. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing (for Pattern of Misconduct and Alcohol Rehabilitation Failure) using the procedure on 28 May 2009 , the Applicant waived rights to consult with a qualified counsel and s ubmit a written statement . The NDRB was unable to determine whether the Applicant exercised his right to request a General Court-Martial Convening Authority review due to the notification and acknowledgment form being only partially complete. The Applicant was separated from the Navy on 5 Jun 2009 with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends his discharge was improper , because he was wrongfully accused by San Diego Police via false police reports , and he was not charged and prosecuted in a San Diego court. The NDRB is not an investigative body, and allegations of improper or illegal police conduct should be made to the appropriate law enforcement or civil supervisory organization. Moreover, t he 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 that improper procedures by civil law enforcement or by his command led to his administrative discharge. The Applicant’s record clearly reflects a pattern of misconduct starting in Aug 2008 with a 2 - day period of UA (9-10 Aug 2008) and failing to adhere to established liberty orders/regulations for which the Applicant went to Captain’s Mast (NJP) . T he A pplicant’s C O states that the aforementioned misconduct was determined to be alcohol related and the Applicant was referred to alcohol rehabilitation treatment. On 3 Sep 2008, the Applicant was dropped from the Corpsman training school at Great Lakes, I L . After reassignment to the USS Benfold, the Applicant again received NJP (Mar 2009) for another UA incident and drunk and disorderly conduct , which was his second alcohol - related incident. Two months later, the Applicant received his third NJP for being drunk on duty while attending an alcoho l abuse screening appointment.

The Applicant’s command subsequently processed the Applicant for administrative separation due to a P attern of M isconduct and A lcohol R ehabilitation F ailure, which was in accordance with the Naval Military Personnel Manual (MILPERSMAN) . After a detailed and thorough examination of the Applicant’s records, the Board found no evidence to support his contention of impropriety. Per the MILPERSMAN, a clear pattern of misconduct existed and the Applicant violated a Page 13 retention


warning (15 Aug 2008). Therefore , the Board found these issues 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 . 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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