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NAVY | DRB | 2010_Navy | ND1002198
Original file (ND1002198.rtf) Auto-classification: Denied

ex-DCC, USN
Current Discharge and Applicant’s Request
Application Received: 20100909
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630550 [ALCOHOL REHABILITATION FAILURE]

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19810213 - 19810309     Active:            19810310 - 19850120
                                             19850121 - 19901119

Period of Service Under Review:
Date of Current Enlistment: 19901120     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19951001      Highest Rank/Rate: DCC
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 4.0 ( 6 )      Behavior: 4.0 ( 6 )        OTA: 4.00

Awards and Decorations ( per DD 214):      N MCA M ( 2 ) ( 2 ) ( 3 ) ESWS

Periods of UA /C ONF : UA 1300, 19950505 - 1015, 19950506 ( 21 hours, 5 minutes )    CONF:

NJP :
- 19940616 :      Article (Simple assault)
         Article (General A rticle, 2 specifications )
         Specification 1: Fraternization
         Specification 2: Disorderly conduct, drunkenness
          Awarded: RESTR EPD Suspended:

- 19950518 :      Article (Failure to obey lawful order)
         Article (Dereliction of duty)
         Article 134 (General A rticle, 3 specifications )
         Specifications 1-2: Drunkenness
         Specification 3: Fraternization
          Awarded : Susp ended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 8 1 0 310 UNTIL 901119 ”

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. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 July 1994 until 2 October 1996),
Article 3630550, SEPARATION OF ENLISTED PERSONNEL BY REASON OF ALCOHOL ABUSE 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.        Applicant seeks a discharge upgrade to obtain G.I. Bill benefits.
2.       Applicant contends his discharge was inequitable and based on an isolated incident i n otherwise honorable service.
3.       Applicant contends his CO told him his discharge would be automatically upgraded six months after discharge.
Decision

Date: 20 1 2 0104             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. Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available records to determine whether discharge met the pertinent standards of equity and proprie ty. The Applicant’s record of service did reflect two for o f the Uniform Code of Military Justice (UCMJ): Article 91 ( Insubordinate conduct toward warrant, noncommissioned, petty officer ), Article 92 ( Failure to obey an order or regulation ), Article 128 ( Assault ) , and Article 134 ( General A rticle, 5 specifications: two incidents of fraternization and three incidents of disorderly conduct/drunkenness) . The record also revealed the Applicant was transferred to the Naval Rehabilitation Center from 3 Jan - 5 Feb 1993 for treatment . Although the records are incomplete, the information available indicates the Applicant was processed for administrative separation due to alcohol rehabilitation failure per the Naval Military Personnel Manual (MILPERSMAN). The NDRB did not have the Applicant’s administrative separation pack age to determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board or a General Court-Martial Convening Authority review . The separation code of JPD on the Applicant’s DD Form 214 indicates he did not receive an administrative separation board . The Applicant was separated on 1 Oct 1995 with a General (Under Honorable Conditions) discharge due to Alcohol Rehabilitat ion Failure.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain G.I. Bill benefits. 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 and based on an isolated incident in otherwise honorable service. Although review of the Applicant’s record reveals little details regarding the misconduct that led to him receiving two NJPs, the violations of UCMJ Articles 91, 92, and 128 are considered commission of a serious offense and punishable by up to two years confinement and a B ad C onduct D ischarge if awarded at trial by courts-martial (special or general). Per the MILPERSMAN, a Sailor may be awarded a General (Under Honorable Conditions) discharge if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. As a Chief Petty Officer, leader , and mentor of Sailors, one’s professional and personal conduct must be above reproach. With find ings of guilty at two separate NJPs within the current enlistment and an alcohol rehabilitation failure, the Applicant’s command chose to process him for administrative separation. Based on his strong record of service, the Applicant avoided an Under Other Than Honorable Conditions discharge for misconduct and was instead awarded a General (Under Honorable Conditions) characterization of service for alcohol rehabilitation failure . After detailed review and careful consideration of all the available evidence, the Board found that the Applicant’s discharge was proper and equitable, and in accordance with the applicable orders and directives in effect at the time of this separation. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his CO told him his discharge would be automatically upgraded six months after discharge . 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 N aval S ervice. The NDRB does not automatically upgrade discharges. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . 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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