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NAVY | DRB | 2011_Navy | ND1100827
Original file (ND1100827.rtf) Auto-classification: Denied

ex-QMSR, USN
Current Discharge and Applicant’s Request
Application Received: 20110210
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)        20010628 - 20010628     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010629     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040429      Highest Rank/Rate: QMSN
Length of Service: Y ear s M onth s 01 D a y
Education Level: NFIR    AFQT: 77
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.58

Awards and Decorations ( per DD 214):      NDSM SSDR AFEM EAWS ESWS

Periods of UA /C ONF :

NJP : 3

- 20021104:      Article 91 (Insubordinate conduct toward a petty officer, disrespectful in language , 20020719 )
         Article 92 (Failure to obey order or regulation, failed to man his station on the bridge , 20020719 )
         Article 134 ( General Article, w rongfully communicate a threat to a First Class Petty Officer, 20020719 )
         Awarded: RIR (to E-2) RESTR EPD Suspended: RIR (suspend 6 months)

- 20031128 :      Article 92 (Failure to obey order or regulation, underage drinking , 20031126 )
         Article 134 ( General Article, d runk and disorderly , 20031126 )
         Awarded: RIR (to E-2) FOP RESTR EPD Suspended:

- 20040315 :      Article 128 (Assaulted an FC3 by pushing him and hitting him in the arm with a cup , 20040313 )
         Article 134 (Drunk and disorderly , 2 specifications, 20040312-20040313 )
         Awarded : RIR (to E-1) FOP RESTR EPD Susp ended:

S CM : NONE       SPCM: NONE        C C : NONE

Retention Warning Counseling : 1
- 2002110 7 :       For disrespect ful language and communicating a threat to a First Class P etty O fficer on 19 July 2002 which resulted in Commanding Officer’s NJP held on 4 November 2002.

Administrative Corrections to the Applicant’s DD 214

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

          Block 12h, Effective Date of Pay Grade, should read: “ Year 04, Month 03, Day 15 ”

The NDRB will recommend to the Command er, 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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 .



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

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to obtain veteran education benefits.
2.       Applicant contends his misconduct was minor and not willful, but a result of a drinking problem that the Navy should have recognized and then of fered rehabilitation treatment.

Decision

Date: 20 1 2 0426             Location: Washington D.C .        R epresentation : NONE

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 identified one decisional issue for the Board’s consideration. The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) retention warning and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward a petty of ficer, disrespectful in language to a QM1 by stating , “I just want to ship you’re axx” and “fxxx you” or words to that effect, o/o 19 July 2002 ) , Article 92 (Failure to obey order or regulation, 2 specifications : failed to man his station on the bridge, o/o 19 July 2002 ; wrongfully consuming alcoholic beverages under the age of 21, o/o 26 November 2003 ) , Article 128 ( Assault, a ssaulted an FC3 by pushing him and hitting him in the arm with a plastic cup , The Doghouse bar in Waikiki, Hawaii, o/o 13 March 2004 ) , and Article 134 ( General A rticle, 3 specifications : W rongfully communicate a threat to a QM1 stating , “I’ll fxxx you up” or words to that effect, o/o 19 July 2002 ; d runk and disorderly conduct , Naval Station Pearl Harbor building 1370 parking lot , o/o 26 November 2003; and drunk and disorderly conduct, Zanzabar nightclub and The Doghouse bar in Waikiki, Hawaii, 12 and 13 March 2004, respectively ). Based on the offense s committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing ( P attern of M isconduct and C ommission of a S erious O ffense) using the notification procedure on 16 Mar 2004 , the Applicant waived his rights to consult with a qualified counsel , submit a written statement , and request a General Court Martial Convening Authority r eview. The Applicant was not eligible for an administrative separation board. The Applicant’s Commanding Officer endorsed his administrative separation package, stating , “(the Applicant) has demonstrated a trend of misconduct while onboard Lake Erie. It is evident that this service member should not be recommended for retention in the Naval Service … . ” After considering all the available evidence regarding the Applicant’s misconduct, the Separation Authority directed that the Applicant be separated from the Navy with a General (Under Honorable Conditions) discharge due to Pattern of Misconduct.

: (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. 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. Additionally, th e 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.
: (Decisional) ( ) . The Applicant contends his misconduct was minor and not willful, but a result of a drinking problem that the Navy should have recognized and then offered rehabilitation treatment. The NDRB conducted a thorough review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. While he may feel alcohol abuse was the underlying cause of his misconduct, the record clearly reflects his misconduct was 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 that he should not be held accountable for his actions. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record . The Applicant’s record of service reflected one NAVPERS 1070/613 retention warning and three NJPs for violations of UCMJ Article 86 (UA) , Article 92 (Failure to obey order or regulation), Article 128 (Assault) , and Article 134 (General Article) . Violations of UCMJ Article s 92 and 128 are considered serious offense s and punishable by a B ad C onduct D ischarge and between six months and three years imprisonment if adjudged as part of the sentence upon conviction by a special or general court-martial. Instead of referring charges to a court-martial, however, the Applicant’s command opted for the more lenient administrative discharge and further recommended the very lenient General discharge instead of the more common Under Other Than Honorable Conditions characterization of service.

 As to the Navy bearing responsibility for not identifying his alcohol problem and offering rehabilitation, it was the Applicant’s responsibility to follow the rules and regulations of the Navy and to seek treatment if he believed he had an alcohol problem. Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.

Additionally, Evaluation Reports located within the Applicant’s record included the following remarks: (7 Sep 2001-15 Jul 2002) “…Allows personal differences with Petty Officers to supercede mission accomplishment undermining efficiency and teamwork. Such instances resulted in counseling. Occasionally exhibits poor headwork: Aftersteering helmsman qualification was revoked because he left his station before being properly relieved … . ”; (16 Jul 2002-15 Jul 2003) “…Occasionally exhibits poor judgment and headwork: sent to Captain’s Mast for Disrespect and Disobeying orders from a Senior Petty Officer.” After careful consideration of the availab le evidence, the NDRB found that the Applicant’s discharge was proper and equitable and in accordance with the applicable order s and directives in effect at the time of his discharge. Accordingly, the NDRB determined this issue to be without merit and 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 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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