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NAVY | DRB | 2011_Navy | ND1100919
Original file (ND1100919.rtf) Auto-classification: Denied
ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20110224
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)        20021010 - 20021027     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20021028     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040805      Highest Rank/Rate: SN
Length of Service: Year(s) Month(s) 08 D ay(s)
 Education Level:        AFQT: 65
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00

Awards and Decorations ( per DD 214):      , ,

Periods of C ONF :

NJP :

- 2003112 6 :      Article (Failure to obey order or regulation)
         Article (Drunken or reckless operation of a vehicle)
         Awarded: Suspended:

- 20040603 :      Article (Unauthorized absence)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

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

NDRB Documentary Review Conducted (date):        20061220
NDRB Documentary Review Docket Number:   ND07-00258
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
Administrative Corrections to the Applicant’s DD 214

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

         “ PATTERN OF MISCONDUCT ”

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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. The Applicants seeks a change in his reentry code (RE-Code) .
2. The Applicant seeks a change in his narrative reason from P attern of M isconduct to M edical , contending that he was not a rehabilitation failure, his counseling and rehabilitation requirements were not met , and he was discharged prior to receiving the appropriate follow-on treatment.
3 . The Applicant contends that he was young and immature at the time of his misconduct .
4 . The Applicant contends his record of service outweighs his misconduct.
5 . The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date : 20 1 2 0530             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 NDRB 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 NDRB complete d a thorough review of the circumstances that led to the discharge , and the discharge process , to ensure the discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized a bsence ), Article 92 ( Failure to obey order or regulation , 2 specifications ), and Article 111 ( Drunken or reckless operation of a vehicle with a B AC of .149 ). Based on the offense s committed by the Applicant, his command administratively processed for separation due to a Pattern of Misconduct pursuant to Article 1910-140 of the Naval Military Personnel Manual (MILPERSMAN) . The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel or to submit a written statement. However, the Applicant has a G KA separation code on his DD Form 214 , which indicates he waived his right to an administrative hearing board.

: (Nondecisional) The Applicant seeks a change in his reenlistment code (RE-Code) . The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code. 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. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

 Issue 2 : (Decisional) ( ) . The Applicant seeks a change in his narrative reason from P attern of M isconduct to M edical, contending that he was not a rehabilitation failure, his counseling and rehabilitation requirements were not met, and he was discharged prior to receiving the appropriate follow-on treatment. As a resul t of a DUI and multiple alcohol- related instances, the Applicant was referred by his command for an Alcohol Treatment evaluation. The Applicant was screened at the local substance abuse counseling center and referred for a formal evaluation for his substance abuse as documented by multiple alcohol - related incidents. The Applicant was screened and provisionally diagnosed with alcohol abus e . D ue to his positive outlook and willingness for treatment, he was assigned to a 30 - day intensive outpatient treatment program. While in this program, and after multiple counseling sessions and evaluations, the Applicant received a final diagnosis of Alcohol Dependant (Day 11) . The Applicant completed five weeks of treatment (21 April 2004) and participated in development of his post-treatment recovery plan. The Applicant developed a post-treatment aftercare plan that include d only drinking a fifth of liquor on the weekends when he did not have duty the following morning. Given this, the counselors provide d a guarded prognosis with a high risk for a relapse. The formal aftercare program included abstaining from drinking alcohol due to being underage. During the Applicant’s testimony, the Applicant stated that he mentally withdrew

him self from the program due to his belief that the program staff did not have the experience to conduct the program. On 03 June 2004 the Applicant received a nonjudicial punishment for violation of Article 86 (Unauthorized absence) and Article 92 ( F ailure to obey orders) due to overindulgence of alcohol. This alcohol - related incident violated his aftercare treatment program and documented hi m as a treatment failure, mandating processing for discharge. MILPERSMAN 1910-152 states that an alcohol rehabilitation failure is any member who has incurred an alcohol - related incident, has been a command referral, or has self-referred, and has been screened by medical personnel and found to be in need of treatment, and who commences but subsequently fails to complete any prescribed treatment at Level I or above, or incurs an alcohol incident after treatment . Also any member who fails to participate in, fails to follow, or fails to successfully complete any medically prescribed and command-approved aftercare plan is deemed an alcohol rehabilitation failure. After a detailed review of the documentary evidence, and the Applicant’s testimony, the NDRB determined that the Applicant did receive the proper treatment program as required by Naval Instruction ; that he was determined to be a treat ment failure due to his alcohol- related misconduct while in an aftercare status; that discharge was warranted for both Alcohol Rehabilitation Failure and Misconduct (Pattern of Misconduct) ; and that no further alcohol treatment was required prior to discharge. Accordingly, the NDRB determined that no change is warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends that he was young and immature at the time of his misconduct and warrants consideration as an extenuating and mitigating circumstance of his discharge . The Applicant contended that he did not know how to drink responsibly , which led to his alcoholism. The NDRB recognizes that many service members are young when they enlist for service , but most still manage to serve honorably. The Board also understands some members are not as mature as others, but it does not view a member’s claim o f youth and immaturity to be a mitigating factor or a sufficient reason for misconduct. Moreover, a lcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment . Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends his record of service outweighs his misconduct , and as such, warrants an upgrade in the characterization of his discharge . The Applicant provided a statement describing awards and decorations received as well as submitting a commendation letter from his commanding officer . The Applicant was discharged from the Naval Service due to Misconduct , specifically having established a pattern of misconduct as defined by Article 1910-140 of the MILPERSMAN. Although the administrative discharge was the result of misconduct, it was not part of a punitive punishment awarded at a trial by court-martial, which could have resulted in a substantially more harsh discharge. The Separation Authority reviewed the Applicant’s record of service during the enlistment period, determining that the Applicant’s documented record of misconduct (2 NJPs , one of which violated a retention warning) established the minimum requirements for discharge based on a pattern of misconduct. The Separation Authority further determined that retention in the Applicant’s case was not warranted and that the proposed characterization of service - General (Under Honorable Conditions) - was proper. Based upon the available service records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The Applicant received a formal retention-counseling warning during h is enlistment, which he violated with continued misconduct. Given the two nonjudicial punishments, coupled with a written retention warning violation, the required elements for separation based on Misconduct (Pattern of Misconduct) were satisfied. After a detailed review of the facts, circumstances, and issues unique to this discharge action, the NDRB determined that the Applicant was discharged properly in accordance with the MILPERSMAN. As such, relief based on matters of propriety is not warranted.

 Based on the pattern of misconduct committed during the Applicant’s current enlistment, the command recommended separation with a General (Under Honorable Conditions) characterization of service at discharge. The Separation Authority reviewed the evidence of record and the established pattern of misconduct and concurred. A service member’s characterization of service at discharge is recognition of performance and conduct during an enlistment; it is not necessarily dependent upon the narrative reason for separation or any previous periods of honorable service. When the quality of a member’s service has met the standards of acceptable conduct and performance of duty for military personnel, it is appropriate to characterize that period of service as H onorable. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duties outweigh the positive aspects of the member’s military record. The Applicant’s record of performance and conduct reflected a documented pattern of misconduct - willful violations of the UCMJ based on an inability to comply with rules and regulation. He was afforded treatment for his alcohol issues, which he admittedly self-terminated while in treatment due to a change in counselors. The NDRB determined that the Applicant’s actions met the requirements to warrant separation for a patter n of misconduct. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances and that relief, as requested, is not warranted . Relief denied.



: (Decisional) ( ) . The Applicant contends that his post-service achievements as evidenced by his community service and volunteer hours log, college transcript, alcohol and drug- counseling certificate, and employment history wa rrants consideration for an upgrade . The NDRB considers 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. However, submission of post-service items does not guarantee an upgrade from an unfavorable discharge , as each discharge is reviewed by the NDRB on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is not eligible for further reviews from the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm. 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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