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NAVY | DRB | 2010_Navy | ND1001742

Original file (ND1001742.rtf) Auto-classification: Denied

ex-DC3, USN

Current Discharge and Applicant’s Request

Application Received: 20100701

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)        20001030 - 20001113     Active:

Period of Service Under Review:
Date of Current Enlistment: 20001114     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040629      Highest Rank/Rate: DC3
Length of Service : Y ear s M onth s 15 D a ys
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.14

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP : 2

- 20010509 :      Article 108 ( Military property of the United States – loss, damage, destruction, or wrongful disposition, destruction of military property of a value of approximately $40.00)
         Article 134 (General article, 2 specifications )
         Specification 1: Underage drinking
Specification 2: Drunk and disorderly
         Awarded: FOP RESTR EPD Suspended: FOP (1 month)

- 20020307 :      Article 128 (Assault, consummated by a battery)
         Awarded: RIR RESTR EPD Susp ended: RIR

S CM : 1

- 20040429 :       Art icle 86 (Absence without leave, 20040318 – 20040319)
         Article 128 (Assault, unlawfully strike a petty officer and spit in his face)
         Article 134 (General article, drunk and disorderly)
         Sentence : RIR CONF 20 days

SPCM:

C C : 2

- 20020307 :       Offense: Reckless driving
         Sentence : $50.00 fine and court cost

- 20031212:     Offense: Driving Under the Influence
         Sentence: 30 days in jail (30 days suspended), $250.00 fine, $174.00 court costs

Retention Warning Counseling : 1

- 20010509 :       For destruction of military property and underage drinking

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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 1910-142, SEPARATION 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 s 108, 111, and 1 28 .

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

Applicant’s Issues

1.        The Applicant states he should have a General (Under Honorable Conditions) per applicable regulations.
2.       The Applicant believes he should have been separated as an alcohol rehabilitation failure instead of being retained, which eventually led to his separation with an Under Other Than Honorable Conditions characterization of service.

Decision

Date : 2011 1005             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’s record of service included NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Military Justice (UCMJ): Article 108 ( Destruction of military property , ), Article ( , ), and Article ( Article , : Underage drinking, drunk and disorderly ) , for of the UCMJ: Article ( , : one day, surrendered ) , Article ( , ), and Article ( Article , : Drunk and disorderly ) , and two civil convictions: (Reckless driving and driving under the influence) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant right to submit a written statement, consult with a qualified counsel and request an administrative board.

: (Decisional) ( ) . The Applicant states he should have a General (Under Honorable Conditions) per applicable regulations and believes he should have been separated as an alcohol rehabilitation failure instead of being retained, which eventually led to his separation with an Under Other Than Honorable Conditions characterization of service. The Applicant’s command properly notified the Applicant on 29 April 2004 that he was being recommended for administrative separation per the following Naval Military Personnel Manual Articles : 1910-140 (Pattern of Misconduct: May 2001 NJP, May 2001 Page 13 retention warning, March 2002 NJP), 1910-142 (Commission of a Serious Offense: violation of UCMJ Articles 108, 111 (civilian DUI), and 128. Note: A serious offense is any offense that would warrant a punitive discharge (i.e., Bad Conduct or Dishonorable) per the Manual for Courts-Martial, Appendix 12), 1910-144 (Civilian Conviction: reckless driving and DUI ), and 1910-152 (Alcohol Rehabilitation Failure: incurred DUI on 23 June 2003 after completing Level I outpatient treatment).

Previous to this April 2004 notification, the Applicant’s command had submitted a waiver request in November 2003 to retain the Applicant in the Navy despite applicable regulations that mandated his separation for alcohol rehabilitation failure and misconduct. In December 2003, Navy Personnel Command denied this waiver request and directed the Applicant to be separated for alcohol rehabilitation failure . However, paragraph 4 of this message states that “if member meets minimum criteria for any other reason, multiple processing IAW MILPERSMAN 1910-210 is required.” In April 2004, t he Applicant was properly notified of processing for the multiple reasons as stated earlier in this paragraph. It is unclear as to why this notification occurred 5 months after the message, but it is not unusual nor is it relevant. The Separation Authority determines which reason is most appropriate and selected Commission of a Serious Offense, which is completely in line with similar situations where a member is being processed for alcohol rehabilitation failure and misconduct. The Applicant is fortunate his command opted for the much more lenient administrative separation, especially considering the number of offenses.

As to the Applicant’s assertion that he believes he should have been separated as an alcohol rehabilitation failure with a General discharge in December 2003 when directed by Navy Personnel Command, the NDRB is in partial agreement with the Applicant. He should have been separated in December 2003, because he had clearly shown through multiple incidents of

misconduct over three years that he was not fit for further Naval service. Further misconduct that resulted in a summary court-martial in April 2004 bears out this point. If the Applicant had been separated in December 2003, all of the reasons for separation listed above (pattern of misconduct, commission of a serious offense, civilian conviction, and alcohol rehab failure) would have been warranted, and the Applicant would still have warranted an Under Other Than Honorable Conditions discharge for his poor behavior while in the Navy.

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. 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. With a summary court-martial, two NJPs, a Page 13 retention warning, two civilian convictions, and an alcohol rehabilitation failure, the Applicant was fully deserving of his Under Other Than Honorable Conditions discharge. The Navy retained the Applicant in an effort to give him the opportunity to be successful in his Navy career. The Navy is not responsible for the Applicant’s serious misconduct that resulted in his separation. The Applicant bears responsibility for his actions and was held accountable for those actions. 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 d ischarge 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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, 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 | ND1001742

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