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NAVY | DRB | 2010_Navy | ND1001369
Original file (ND1001369.rtf) Auto-classification: Denied

ex-ETSA, 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)        19980925 - 19990526     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19990527     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040513      Highest Rank/Rate: EM3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 86
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.0 (1)

Awards and Decorations ( per DD 214):      , NDSM

Periods of UA /C ONF :

NJP :
- 20000901 :       Article 92 (Fail ure to obey a lawful order or regulation , underage drinking)
         Awarded : Oral admonition , RIR, , Susp ended:

- 20020212 :       Article 134 ( General A rticle , crimes and offense s not capital , to wit: drinking under the age of 21 , violation of state law )
         Article 111 (Driving Under the Influence of Alcohol – dismissed, processed by civilian conviction dated 20020128 )
         Awarded : RIR Susp ended:

- 20040302 :       Article (Failure to go to appointed place of duty)
         Article (False official statement)
         Awarded : Susp ended:

S CM :    SPCM:

C C :
- 20020128 :       Offense: DUI conviction
         Sentence : $420.00 fine; and Impaired D river I ntervention program.

- 20031106 :       Offense: DUI Conviction ( X 2 ) [ Dec 2002 and May 2003 adjudicated at one hearing]
         Sentence : 18 months restricted license, 34 days mandatory jail sentence; probation for 2 years.

Retention Warning Counseling :

- 20000907 : For violation of A rticle 92 (Underage drinking)

- 20020213 : For violation of A rticle 134 (Crimes and offenses Not Capital - d rinking under the age of 21 ) .

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 E, NATIONAL DEFENSE SERVICE MEDAL”
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. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

C. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-144, SEPARATION BY REASON OF MISCONDUCT - CIVILIAN CONVICTION .

D. Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION.

E. 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 92, 107, and 111.

 F . 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 his characterization of service at discharge in order to facilitate access to the Department of Veterans Affairs educational benefits programs.

2.       Decisional issues : The Applicant contends that his misconduct was alcohol - related incidents and, since discharge, the Applicant has received treatment for his alcohol addiction and has remained sober. The Applicant contends that his post - service efforts warrant consideration for an upgrade to an H onorable .

Decision

Date: 20 1 1 070 8            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 Applica nt. The Applicant identified two dec isional issu es related to the equity of the Applicant ’ s discharge for the NDRB’s consideration. The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant entered military service at age 17 on a four-year enlistment with a twenty-four month extension under a guaranteed training program in the n uclear field ; he completed four year s and eleven months of his six - year obligated service contract. During the period of enlistment, the Applicant received two NAVPERS 1070/613 retention–counseling warnings advising him of possible separation for any further misconduct. The Applicant ’ s service record also contained t hree nonjudicial punishments due to violation s of the Uniform Code of Military Justice (UCMJ) , specifically , violation of Article 86 (Absence without leave – failure to go to appointed place of duty ) , Article 92 (Failure to obey a lawful order or regulation – underage drinking), Ar ticle 10 7 ( False o fficial s tatement ) , and Article 134 (General Article, violation of state law related to underage alcohol consumption) . Additionally, the Applicant’s record of service included three civilian convictions for operating a motor vehicle under the influence of alcohol - above the legal limit as established by the State of New Hampshire. The Applicant was discharged from the Naval Service due to Misconduct , s pecifically, having established a pattern of misconduct as defined by Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN). The Separation Authority reviewed the Command’s recommendation for separation; he determined that the Applicant’s documented record of service established the minimum requirements for discharge based on the reasons stated in the notification process. He further determined that separation in the Applicant’s case was warranted and that the proposed characterization of service was warranted. On 29 April 2004 , the Separation Authority directed the Applicant be discharged and that he receive a re - entry code of RE-4 ( not recommended for reenlistment ) . The NDRB review ed the Applicant’s discharge package to ensure that the Applicant was afforded all of his administrative rights pursuant to the separation process. The Applicant was notified of the proposed separation action on 13 April 2004; he was advised th at he was being processed for separation due to Misconduct (Pattern of Misconduct), Misconduct (Commission of a Serious Offense), Misconduct (Civilian Conviction), and Alcohol Rehabilitation Failure. The Applicant elected to consult with qualified legal counsel and to submit written matters for the Separation Authorit y’s consideration. The Applicant waived his right to request a hearing before an administrative discharge board.

Nondecisional Issues. The Applicant seeks a change in characterization of service at discharge to Honorable in order to gain eligibility for Department of Veterans Affairs (VA) educational benefits . There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits or facilitating educational or employment opportunities. As such, this issue does not serve to provide a foundation upon which the NDRB can establish relief. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

(Decisional Issue s ) ( ) . The Applicant contends that his misconduct of record were all “ alcohol - related incidents ” and, since discharge, the Applicant has received treatment for his alcohol addiction, remaining sober since treatment. The Applicant contends that his post - service efforts warrant consideration for an upgrade to H onorable . T he 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.

Propriety - 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. The Applicant’s documented misconduct of record, coupled with violation of a formal counseling advising him of the possibility of separation if he failed to take corrective actions, met the established requirement for a pattern of misconduct narrative reason for separation. Furthermore, certain serious offenses warrant separation from the service to maintain proper order and discipline; violation of Article s 92, 107, and 111 are such offense s . Violation of these article s may result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge (Bad Conduct) with possible confinement, if adjudicated, and awarded, as part of a sentence by a special or general court-martial. The command did not pursue a punitive punishment but chose the more lenient administrati ve separation process. Violation of any of the above articles of the UCMJ warranted processing for separation due to Misconduct – Commission of a Serious Offense, pursuant to Article 1910-142 of the MILPERSMAN. Moreover, the Applicant ’ s conviction in civilian court for DUI would warrant a punitive discharge for the same or closely related offense under the UCMJ ( A rticle 111) , thus meeting the requirement for separation due to Misconduct – Civil Conviction . Finally , the evidence of record contained in the Applicant’s service record fully supports separation for Alcohol Rehabilitation Failure (second time processed as a rehabilitation treatment failure) ; however, in accordance with Article 1910-410 of the MILPERSMAN, separation for misconduct should normally take precedence over all other reasons for separation . As such, the NDRB determined that the Applicant ’ s discharge was proper as issued; accordingly, relief based on issues of propriety, is denied.

Equity - The administrative separation process encompasses a performance review of a service member’s entire military record, especially the current enlistment; accordingly, commands are required to process members for all reasons for which minimum criteria , as established in the MILPERSMAN , are met. A service member’s characterization of service is founded on the recognition of his performance and conduct and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record. However , an Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.

The Applicant’s record of performance and conduct reflected a documented pattern of misconduct including multiple civilian convictions for driving under the influence of alcohol , violation of retention-counseling warnings, and other violations of the UCMJ: Article s 86, 92, and 1 07. Additionally, the Applicant had been processed previously for separation (Alcohol Rehabilitation Failure – mandatory processing) and was authorized to be counseled and ret ained by the Com mander, Nav y Personnel Command . After reviewing the Applicant’s official service record, the NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, did reflect conduct involving one or more acts or omissions that did constitute a significant departure from the conduct expected of members of the Naval Service.

The Applicant contends that his post - service efforts warrant consideration for an upgrade to H onorable . The NDRB considers 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. However, there 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. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the Applicant’s personal statement on the DD Form 293, he provided proof of alcohol rehabilitation treatment, letters of recommendation from his sponsor attesting to his continued sobriety and involvement with Alcoholics Anonymous, and proof of stable employment. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge . The NDRB reviewed the Applicant’s post-service documentation; however, the board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of his discharge. As such, the NDRB determined that the characterization of service at discharge was appropriate, was equitable, and was consistent with the characterization of discharge given others in similar circumstances. The NDRB determined that an upgrade would be inappropriate . A ccordingly, relief , as requested, is 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 the discharge was proper and equitable as issued. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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 en 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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