Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001338

Original file (ND1001338.rtf) Auto-classification: Denied

ex-STG2, USN

Current Discharge and Applicant’s Request

Application Received: 20100430

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)        20020816 - 20021217     Active:

Period of Service Under Review:
Date of Current Enlistment: 20021218     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20071127      Highest Rank/Rate: STG2
Length of Service : Y ear s M onth s 12 D a y s
Education Level:        AFQT: 84
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.14

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

Periods of UA /C ONF :

NJP :
         - 20050817 – Unknown charges/unknown findings [NJP occurrence extracted from Applicant’s NAVPERS 1070/604 record]

S CM :             SPCM:             Retention Warning Counseling :

C C :
         - 20080818 – Convicted of driving under the influence of a lcohol (DUI) ; Duvall County, Florida Circuit Court .

Administrative Corrections to the Applicant’s DD 214

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

         “ ALCOHOL REHABILITATION FAILURE ”

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.       Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable in order to qualify for Department of Veterans Affairs (VA) educational benefits.

2.       Decisional issues : The Applicant contends that his characterization of service at discharge was inequitable in that it was an overly harsh response for minor issues. The Applicant contends that his characterization of service at discharge was inequitable in that others who committed much more egregious misconduct (drugs) received the same discharge characterization.

Decision

Date: 20 1 1 0804            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 NDRB 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 Applicant identified two issues for the NDRB’s consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service reflects entry into the military service at age 18 under a 4 year enlistment contract with a 24 month extension. The Applicant completed 4 years and 11 months of his 6 year s of obligated service. Throughout this enlistment, he received no NAVPERS 1070/613 (page 13) retention-counseling warnings but his service record reflected one nonjudicial punishment for violation of the UCMJ. However, the Applicant’s record of service during th e enlistment period also reflects multiple referr als for fitness for duty evaluations due to overindulgence of alcohol , impacting his ability to function safely and effectively.

Due to the nature of the alcohol - related incident s , coupled with the Applicant’s total record of service (to include nonjudicial punishment) , the command determined that retention in t his case was not warranted and processed the Applicant for administrative separation . The NDRB was unable to review the Applicant ’s election of rights due to the lack of a complete discharge package in his service record; as such, the presumption of regularity of governmental affairs was applied by the NDRB in this case. The Applicant’s DD Form 214 documents a separation code of “ J PD” – indicating involuntary separation, administrative discharge board not warranted. Upon review of the administrative separation package, the Separation Authority determined that separation was warranted pursuant to Article 1910-152 (Alcohol Treatment Failure) and further directed that the Applicant receive a General (Under Honorable Conditions) characterization of service and be assigned a re-entry code of RE-4 (not recommended for reenlistment). T he Applicant was discharged from the Naval Service on 27 November 200 7 .

(Nondecisional Issue) - The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable in order to qualify for VA educational benefits. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities. Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge. Additionally, t here is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The Applicant is directed to the Addendum , specifically the paragraph concerning Employment and Educational opportunities.

(Decisional Issues) ( ) . (1) The Applicant contends that his characterization of service at discharge was inequitable in that it was overly harsh response for minor issues. (2) The Applicant contends that his characterization of service at discharge was inequitable , citing that others , who committed more egregious misconduct (drugs) , received the same discharge characterization. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.

I ssue 1 ( ) - The Applicant contends that his characterization of service at discharge was inequitable in that it was an overly harsh response for minor issues . In accordance with the MILPERSMAN ( A rticle 1910-152), the characterization of separation for Alcohol Rehabilitation Failure should be General (Under Honorable Conditions), unless an Entry Level Separation or Honorable characterization is warranted per MILPERSMAN 1910-304. An Honorable characterization of service at discharge is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Based on the Applicant’s record of service during the enlistment period in question (nonjudicial punishment , civilian conviction for DUI, multiple alcohol -related fitness for duty evaluations) , the NDRB determined that the Applicant’s service was honest and faithful, but that significant negative aspects of the member’s conduct or performance of duty did outweigh the positive aspects of his service record. The NDRB found the characterization of the Applicant ’ s discharge was proper, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB discerned no impropriety or inequity in the characterization of the A pplicant’s service at discharge; the NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief was not warranted.

I ssue 2 (E quity ) - The Applicant contends that his characterization of service at discharge was inequitable , citing that others , who committed more egregious misconduct (drugs) , received the same discharge characterization. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant was an Alcohol Rehabilitation Failure, did require mandatory processing for separation, that separation from the Naval Service was appropriate , and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that 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, specifically the paragraphs titled Additional Reviews and Post-Service Conduct .

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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NAVY | DRB | 2010_Navy | ND1001338

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