Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1002305

Original file (ND1002305.rtf) Auto-classification: Denied

ex-AO3, USN

Current Discharge and Applicant’s Request

Application Received: 20100921

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)        20000906 - 20000910     Active:          20000911 - 20040126

Period of Service Under Review:
Date of Current Enlistment: 20040127     Age at Enlistment:
Period of E nlistment : 4 Years Extension
Date of Discharge: 20060125      Highest Rank/Rate: AO3
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.34

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling :
         - 20050607: For being diagnosed with Depressive Disorder by a mental health physician on 11 May 2005.

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.        Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces.
2.       Applicant seeks a discharge upgrade to obtain veteran education benefits.
3.       Applicant contends his discharge was inequitable/too harsh based on mitigating circumstances surrounding his DUI .
4.       Applicant contends his discharge was improper/inequitable , because he was never convicted of the DUI charge.

Decision

Date: 20 1 2 01 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 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 propriety. The Applicant’s record of service include d one NAVPERS 1070/613 (Page 13) retention warning for depressive disorder (7 Jun 2005) , but no commanding officer nonjudicial punishment (NJP) or trial by courts-martial. The record did reflect an Evaluation Report (dated Aug 2005-Jan 2006) that references the Applicant’s discharge from the Naval S ervice for alcohol treatment failure and commission of a serious offense. The report also stated the Applicant “has failed to meet minimum performance standards, requires constant supervision, displayed a lack of motivation to achieve professional qualifications , and that his military bearing and lack of professionalism are a hindrance to good order and discipline. He displayed lack of maturity and poor decision making directly affecting the command. (The Applicant) is not recommended for continued N aval S ervice . ” Since t he NDRB did not have the Applicant’s administrative separation package documentation available, it could not determine whether he exercised or waived his rights to consult with a qualified counsel, submit a written statement , and request a General Court-Martial Convening Authority review . The separation code “ JPD ” listed on the Applicant’s DD Form 214 indicates he was not entitled to an administrative board. The Applicant was separated from the Navy on 25 Jan 2006 with a General (Under Honorable Conditions) discharge due to Alcohol Rehabilitation Failure.

: (Nondecisional) The Applicant seeks a discharge upgrade to reenlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education 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 r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issues 3-4 : (Decisional) ( ) . The Applicant contends his discharge was inequitable/too harsh based on mitigating circumstances surrounding his DUI and that he was never convicted of DUI . Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the N aval S er vice to maintain good order and discipline ; violation of UCMJ Article 11 1 (Drunken Driving) meets this standard . The Applicant signed the USN Illicit Behavior Screening Certificate on 5 Sep 2000. He was fully aware there is little tolerance for

alcohol abuse , and he acknowledged the consequences. T he record (to include his Evaluation and Counseling Reports) clearly reflects his substandard performance and willful misconduct , demonstrat ing he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. Per the Naval Military Personnel Manual (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. Upon separation, if a member’s overall trait average (OTA) is 2.49 or below , the Sailor can be awarded a General (Under Honorable Conditions) discharge. The Applicant’s current enlistment OTA was 2.34 . Based on his substandard OTA , the descriptive comments in his Evaluation Reports , and the DUI arrest/charge (regardless if the charge w as subsequently pled down to reckless driving ), the command was well justified in award ing the Applicant a General (Under Honorable Conditions) discharge. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and falls short of what is required for an upgrade in the characterization of service.

In reference to alcohol treatment failure, the MILPERSMAN (section 1910-152) lists the following eligibility criteria for administrative separation of personnel not in compliance with established conduct or rehabilitation treatment requirements: a ) A ny serious alcohol incident occurring subsequent to treatment that was precipitated by a previous incident. (For purpose of this provision, treatment shall include all Medical Treatment Facility (MTF) or Alcohol Treatment Facility (A T F) directed early intervention services provided within the Continuum of Care, e.g., Alcohol Impact or equivalent ; b ) Willful failure to complete medically prescribed treatment or failure to complete medically prescribed treatment due to a subsequent alcohol incident. (Conduct which amounts to a refusal, failure to complete, or non-amenability must be determined by the licensed independent practitioner (LIP) or medical officer (MO). Conduct, which amounts to a second incident, shall be determined by the member's commanding officer (CO) ; c ) Any member who fails to participate in, fails to follow, or fails to successfully complete the medically prescribed and command-approved aftercare plan. (This determination must be made by the member ’ s CO in consultation with the Drug and Alcohol Program Advisor (DAPA) and the MFT/ATF ); d ) Any member who returns to alcohol abuse at any time during his or her career following treatment, and is determined to be a treatment failure by an appropriate LIP or MO. Since the NDRB did not have the Applicant’s administrative separation documents available, and with no evidence submitted by the Applicant to rebut the propriety or equity of his discharge, the Board presumed regularity. Accordingly, the Board determined this issue to be without merit and therefore, 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 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 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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NAVY | DRB | 2010_Navy | ND1002305

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