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NAVY | DRB | 2011_Navy | ND1100310
Original file (ND1100310.rtf) Auto-classification: Denied

ex-ADAA, USN
Current Discharge and Applicant’s Request
Application Received: 20101116
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [COMMISSION OF SERIOUS OFFENSE]

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       RE-1

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19910115 - 19910721     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19910722     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960529      Highest Rank/Rate: AD3
Length of Service : Y ear ( s ) M onth ( s ) 8 D a y ( s )
Education Level:        AFQT: 63
Evaluation M arks:         Performance: 3.5 ( 6 )      Behavior: 3.4 ( 6 )        OTA: 3.59

Awards and Decorations ( per DD 214):      BATTLE “E ”

Periods of UA/ C ONF :       UA 19951101 - 19951130 (29 days)

NJP :

- 19951016 :      Article (UA 19950923 - 19950924, 1 day )
         Awarded: (to E-3) Suspended: ( Suspen d 6 months)
          * Suspended punishment v acated on 19951102 due to further misconduct

- 19951207 :      Article (UA 19951101 - 19951130, 29 days )
         Awarded: (to E-2) Suspended:

- 19960315 :      Article 112 (Drunk on duty, aboard USS Nimitz, 19960224 )
         Article 12 8 (Assault consummated by battery, aboard USS Nimitz, 19960224 )
         Article (Drunk and disorderly conduct, aboard USS Nimitz, 19960224 )
         Awarded: (to E-1) Suspended: (suspend 6 months)

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 19910729 :       For fraudulent entry into t he N aval S ervice as evidenced by your failure to disclose your pre - service involvement with civil authorities consisting of the following possession of MJ in Nov 90 in Millbrae , CA awarded $245 fine paid and 4 months supervised probation.







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 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 112, 128, and 134.


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

Applicant’s Issues

 1. Applicant contends his alcohol dependence was a contributing and mitigating factor in his misconduct of record.
2. Applicant contends his post-service achievements warrant consideration for a discharge upgrade.
Decision

Date: 20 1 1 1102             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 eviden ce 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 sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning for fraudulent entry and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications ), Article 112 ( Drunk on duty), A rticle 128 ( Assault consummated by battery ) , and Article 134 ( Drunk and disorderly aboard ship ). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure on 21 Mar 1996 , the Applicant waived rights to consult with a qualified counsel, to submit a written statement, and to request an administrative separation board . On 24 Mar 1996 , the Applicant’s Commanding Officer submitted a request for administrative separation of the Applicant to the Bureau of Naval Personnel (BUPERS) . On 18 Apr 1996, BUPERS directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense). The Applicant was discharged on 29 May 1996.

: (Decisional) ( ) . The Applicant contends his alcohol dependence was a contributing and mitigating factor in his misconduct of record. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline; violations of UCMJ Articles 112, 128, and 134 meet this standard. While he may feel the onset of alcohol dependence were underlying causes of his misconduct, the record clearly reflects the misconduct to be willful and demonstrated 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. Relief denied.
: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. However, t he NDRB does consider post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or was an aberration. T here is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life , subsequent to leaving the service. The Applicant provided significant and credible post-service documentary evidence to include character and personal reference letters, employer letters of reference, college and vocational school transcripts/certification s , evidence of substantial community service, criminal record checks, and birth certificates. Additionally, the Applicant was accompanied by a character witness who testified on the Applicant’s behalf. After a careful review of the Applicant ’ s post-service documentation and official service records, and taking into consideration his considerable testimony, the testimony of his character witness , and the facts and circumstances unique to this case, the NDRB determined that partial relief is warranted based on equitable grounds. The Board voted to upgrade the discharge characterization of service to General (Under Honorable Conditions), but not change the narrative reason for separation.
Summary : After a thorough review of the available evidence, to include the Applicant’s personal testimony, the s ummary of s ervice, r ecord e ntries , and the administrative separation p rocess, the NDRB determined that the discharge was proper and equitable at the time of discharge. However, based on the considerable post-service evidence and significant personal appearance hearing testimony presented on the Applicant’s behalf, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) but 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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