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NAVY | DRB | 2010_Navy | ND1001764
Original file (ND1001764.rtf) Auto-classification: Denied

ex-PR2, USN
Current Discharge and Applicant’s Request
Application Received: 20100707
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)        19930129 - 19930331     Active:   19930401 - 19970602 HON
                                    USN 19970603 - 20000502 HON
                                    USN 20000503 - 20060627 HON
Period of Service Under Review:
Date of Current Enlistment: 20060628     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081121      Highest Rank/Rate: PR1
Length of Service : Y ear s M onth s 21 D a ys
Education Level:        AFQT: 49
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.8 ( 4 )        OTA: 3.72

Awards and Decorations ( per DD 214):      Pistol (2) (4)

Periods of C ONF :

NJP :
- 20080724 :      Article 92 (Failure to obey order or regulation )
         Article 111 (Drunken or reckless operation of a vehicle , BAC .08, 20080709 )
         Awarded: RIR (to E-5) FOP RESTR EPD Suspended:

S CM :             S PCM:

C C :
- 20050408 :       Offense: Reckless driving (BAC .011) , 20050203
         Sentence : Driver’s license susp ension (10 days) Jail (90 days, 88 days suspended)

- 20080709:      Offense: Driving under the influence (BAC .08), 20080709
         Sentence: Awaiting court appearance at time of report
Retention Warning Counseling :

- 20080724 :       For failure to obey an order or regulation and drunken operation of a motor vehicle .

Page 13 Counseling s (carried forward from previous enlistment s ) : 3

- 19960621:      For driving under the influence (DUI) charges by the Norfolk Police Department
- 19961112 :       For diagnosis as alcohol dependent and completing Level III Alcohol Rehabilitation Treatment at Norfolk ARC. You are required to complete one year of aftercare treatment.
- 20060330 :       For retention in the Naval service despite alcohol rehabilitation failure (IAW COMNAVPERSCOM msg 301402Z Mar 06).

Administrative Corrections to the Applicant’s DD 214

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

          Block 25, Separation Authority, should read: “MILPERSMAN 1910-142”
         Block 26, Separation Code, should read: “HKQ”
          “ MISCONDUCT (SERIOUS OFFENSE) ”
        
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 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
B. Navy Military Personnel Manual, (NAVPERS 15560C), Change 23, 15 May 2008 until 22 November 2009, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION FAILURE.
C . 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 seeks an upgrade to improve education opportunities.
2.       Applicant seeks an upgrade to improve employment opportunities.
3.       Applicant contends his discharge was inequitable based on his strong record in service.
4.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.
Decision

Date: 20 1 1 11 04             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 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 three NAVPERS 1070/613 (Page 13) retention warnings (alcohol dependence and Level III A lcohol Rehab Treatment , Nov 1996; alcohol rehabilitation failure, Mar 2006; and drunken operation of a motor vehicle, Jul 2008) and one for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation, Article 1110 of the U.S. Navy Regulations, on 9 Jul 2008 ) and Article 111 ( Drunken or reckless operation of a vehicle, BAC .08, on 9 Jul 2008). The record also revealed one civil conviction , on 4 Apr 2008, for reckless driving (driving under influence charge on 3 Feb 2005, BAC 0.11, pled down to reckless driving) and a civil arrest , on 9 Jul 2008, for driving under the influence on 9 Jul 2008 ( BAC .08 ) . Based on the Applicant’s repeated alcohol rehabilitation failure s after receiving Level II and Level III alcohol rehabilitation treatment, to include two DUIs subsequent to completing treatment (3 career incidents involving driving while under the influence), and a previous COMNAVPERSCOM waiver of administrative separation (Feb 2006), his command processed for separation in accordance with the Naval Military Personnel Manual (MILPERSMAN). When notified of administrative separation processing (for alcohol rehabilitation failure and misconduct- commission of a serious offense) using the procedure on 16 Oct 2008 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . On 24 Oct 2008, the Applicant’s Commanding Officer submitted a request to PERSCOM for administrative separation of the Applicant with a General (Under Honorable Conditions) discharge due to alcohol rehabilitation failure . On 29 Oct 2008, PERSCOM directed that the Applicant be discharged with a General (Under Honorable Conditions) discharge due to Misconduct (Commission of a Serious Offense). The Applicant was discharged from the Navy on 21 Nov 2008, but due to administrative error , the Applicant’s DD Form 2 14 listed alcohol rehabilitation failure as the na rrative reason for separation.

Issues 1-2 : (Nondecisional) The Applicant seeks an upgrade to improve education and employment opportunities. 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 regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 : (Decisional) ( ) . The Applicant contends his discharge was inequitable based on his strong record in service. The NDRB conducted a detailed review of the Applicant’s service records to determine whether his discharge met the pertinent standards for propriety and equity. The Board noted the Applicant had completed more than 15 years of active service prior to his discharge and for the most part had earned above average evaluation reports (3.72 O verall Trait Average over four reporting periods during the current enlistment). However , the Applicant’s records also revealed that he had repeated problems with alcohol beginning in June 1996 when he was cited for driving under the influence of alcohol. Later that same year, he was referred to and completed Level II and Level III alcohol rehabilitation treatment. In April 2005,

the Applicant was convicted in civil court for reckless driving as a result of being cited for DUI (.11 BAC). Due to his excellent performance and reputation in supporting the N aval S pecial W arfare commu ni ty, his command requested a waiver of mandatory administrative separation (AdSep) processing from PERSCOM, but the waiver was denied. The Applicant was then processed for AdSep and he requested an administrative separation board. On 20 Oct 2005, the Senior Member of the AdSep Board submitted the following results to the Commanding Officer: (by 3-0 vote) the Applicant was determined to be an alcohol rehabilitation failure and (by 3-0 vote) the Applicant should be retained. The Commanding Officer endorsed his support of the Board’s findings and the Applicant’s retention in the Navy and forwarded it to PERSCOM. Based on the facts of record, and the recommendations from the AdSep Board and the Applicant’s Commanding Officer, the Commander, PERSCOM, directed that the Applicant be retained in the Navy. Unfortunately, three years later the Applicant was arrested for DUI (BAC .08) , which resulted in being found guilty at NJP for violation of UCMJ Articles 92 and 111 ( 24 Jul 2008 ) .

Per the MILPERSMAN, a n H onorable characterization of service 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 G eneral ( U nder H onorable C onditions) 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. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to maintain the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and f alls short of w hat is required for an upgrade to Honorable. A fter careful consideration of and deliberation on the facts and circumstances surrounding the Applicant’s case, the NDRB found his discharge was proper and equitable. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides 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 have existed during the period of enlistment in question. The Applicant provided a personal statement as evidence of post-service accomplishments (motorcycle mechanic institute certification, community college academic progress, and continued sobriety). Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “ which substantiate or relate directly to your issues in Item 6 ” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence , and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . Co mpletion of these items alone , however, does not guarantee a discharge upgrade as each discharge is reviewed by the Board on a case by case basis . Without any additional post-service documentary evidence, the Board found this issue 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 the discharge was proper and equitable at the time of discharge. However, administrative errors did exist on the Applicant’s DD Form 214. Therefore, pursuant to the COMNAVPERSCOM 290901Z Oct 08 message, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall change to MISCONDUCT (SERIOUS OFFENSE). 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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