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NAVY | DRB | 2011_Navy | ND1100766
Original file (ND1100766.rtf) Auto-classification: Denied

ex-FC2, USN
Current Discharge and Applicant’s Request
Application Received: 20110201
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)        20021115 - 20030407     Active:   20030408 - 20081106 HON

Period of Service Under Review:
Date of Current Enlistment: 20081107     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20091130      Highest Rank/Rate: FC1
Length of Service: Y ear M onth s 24 D a ys
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.86

Awards and Decorations ( per DD 214):      Rifle EX Pistol EX NDSM GWOTSM GCM (2) NMCAM (2) OSR (5) SSDR (5) NAVY “ E ” (2) ESWS

Periods of UA /C ONF :

NJP : 2

- 20090615 :      Article 92 (Failure to obey order or regulation, drinking alcoholic beverages without a liberty buddy)
         Article 134 (Disorderly conduct, drunkenness)
         Awarded: RIR Suspended:

- 20090916 :      Article 112 (Drunk on duty)
         Article 117 (Provoking speech) [Charge ordered dismissed by Carrier Strike Commander]
         Awarded : RESTR Susp ended:

S CM : NONE       S PCM: NONE        C C : NONE        

Retention Warning Counseling : 1

- 20090615 :       For disorderly conduct, drunkenness

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 :        


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

Applicant’s Issues

 1.        The Applicant contends he only received alcohol rehabilitation treatment as part of the discharge process and it was not the treatment that was promised to him .
2.       The Applicant insists the dis charge procedures were improper in that he should not have been separated, because he never failed alcohol rehabilitation treatment.
3.       The Applicant states the Commanding Officer falsified his official documents.
Decision

Date : 2012 0301             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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure the pertinent standards of equity and propriety were met. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( , , drinking alcoholic beverages without a liberty buddy ), Article 112 ( Drunk on duty , ), and Article ( Article , , Disorderly conduct, drunkenness ). Base d on the offense s committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant rights to submit a written statement and request an administrative board , however, his records do not indicate whether he exercised his right to consult with a qualified counsel. The Administrative Separation Board (ASB) voted 2 to 1 to recommend the Applicant be separated from the Navy and by a 3 to 0 vote , the ASB recommend ed a General (Under Honorable Conditions) characterization of service due to a pattern of misconduct . The Separation Authority approved the recommendation and discharged the Applicant with a General (Under Honorable Conditions) characterization of service for a Pattern of Misconduct.

: (Decisional) ( ) . The Applicant contends he only received alcohol rehabilitation treatment as part of the discharge process and it was not the treatment that was promised to him. Per his own statement submitted with his DD Form 293, he did receive IMPACT training as part of the discharge process. Although the Applicant stated that he asked for alcohol treatment for 3 months, he provided no evidence to substantiate this claim. After a thorough review of the record, the NDRB determined that the Applicant’s command properly followed OPNAVINST 5350.4D. Relief denied.
: (Decisional) ( ) . The Applicant insists the discharge procedures were improper in that he should not have been separated, because he never failed alcohol rehabilitation treatment. The Applicant was not discharged for Alcohol Rehabilitation Failure; he was administratively discharged for a Pattern of Misconduct, the requirements of which he met by his NJP - Page 13 retention warning - NJP. His alcohol treatment, or lack thereof until his discharge process, was not relevant to why he was discharged. After the Applicant’s ASB, which recommended that he be separated for a Pattern of Misconduct, the Applicant’s defense counsel submitted a Letter of Deficiency that challenged the ASB’s results. The Applicant’s CO rebutted these issues, which were then reviewed by the Separation Authority (Navy Personnel Command), who approved the recommendation of the ASB and ordered the Applicant discharged with a General (Under Honorable Conditions) discharge for a Pattern of Misconduct. The NDRB determined no impropriety or inequity in the Applicant’s discharge. In fact, misconduct of this nature often results in an Under Other Than Honorable Conditions characterization of service. Relief denied.


: (Decisional) ( ) . The Applicant contends the commanding officer falsified official documents. The record contained no evidence to support the Applicant’s contention. Though the Applicant identified errors on his discharge paperwork, such as an incorrect marital status, amount of re-enlistment bonus, and total service, these errors did not affect the reason nor the propriety or equity of his discharge. 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 .

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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 .


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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