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NAVY | DRB | 2011_Navy | ND1101213
Original file (ND1101213.rtf) Auto-classification: Denied

ex-FCSA, USN
Current Discharge and Applicant’s Request
Application Received: 20110412
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)        20061120 - 20070926     Active:  

Period of Service Under Review:
Date of Current Enlistment: 200 7 0 9 27     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100421      Highest Rank/Rate: FC3
Length of Service: Y ear s M onth s 25 D a ys
Education Level:        AFQT: 85
Evaluation M arks:         Performance: 2.8 ( 4 )      Behavior: 2.0 ( 5 )        OTA: 2.45

Awards and Decorations ( per DD 214):      Rifle SS Pistol SS NDSM GWOTEM GWOTSM SSDR ESWS

Periods of UA /C ONF :

NJP : 3

- 20090226 :      Article Unknown [Extracted from Retention Warning Counseling dated 20090226]
         Awarded: NFIR Suspended: NFIR

- 20100114 :      Article 92 (Failure to obey order or regulation)
         Awarded: NFIR Suspended: NFIR

- 20100412 :      Article 92 (Failure to obey order or regulation)
         Article 111 (Drunken or reckless operation of a vehicle)
         Awarded : NFIR Susp ended: NFIR

S CM : NONE       SPCM: NONE       C C : NONE

Retention Warning Counseling : 1

         - 200 90226 :                As a result of your CO’s NJP held this date, you are directed not to engage in drinking while onboard CHANCELLORSVILLE or until the legal drinking age limit of 21.

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 seeks an upgrade to qualify for the G.I. Bill.
2.       The Applicant contends his service prior to his problem s with alcohol was worthy of an H onorable discharge.
3 .       The Applicant contends his final incident was not alcohol - related.
4.       Post-service conduct.

Decision

Date: 20 1 2 0607             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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included t hree nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): (First NJP dated 20090226 NFIR [Extracted from Retention Warning Counseling dated 20090226], Article 92 (Failure to obey order or regulation, 2 specifications) and Article 111 (Drunken or reckless operation of a vehicle). The Applicant was administratively processed for separation by his command due to Alcohol Rehabilitation Failure. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to c onsult with a qualified counsel and submit a written statement . The Applicant was not entitled to an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to qualify for the G.I. Bill. 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.

: (Decisional) ( ) . The Applicant contends his service prior to his problem with alcohol was worthy of an H onorable discharge. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, which included three NJPs and a retention counseling warning in 30 months of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his final incident was not alcohol - related. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. Although the Applicant submitted a medical document that stated that there was no evidence of intoxication at 0600 after the 10 April incident, the Applicant was found guilty of violating UCMJ Article 92 (Failure to obey an order or regulation) and Article 111 (Drunken or reckless operation of a vehicle) by his CO on 12 April 2010. This incident qualified the Applicant as an Alcohol Rehabilitation Failure. A thorough review of the Applicant’s record of service and medical health record indicates his first NJP , which occurred 26 February 2009 , was likely due to an underage alcohol incident that resulted in the Applicant being referred for outpatient care at the Substance Abuse Rehabilitation Program (SARP) , Naval Medical Center San Diego by his command . The Applicant started treatment on 04 May 2009 and completed treatment 13 May 2009. The record of service reflects the Applicant appear ed at NJPs on 14 January 2010 and 12 April 2010 for Article 92 and Article 111 violations , both of which are considered serious offenses per the Manual for Courts-Martial . In the spring of 2010, the Applicant met the

requirements for administrative separation due to Alcohol Rehabilitation Failure, Misconduct (Pattern of Misconduct), and Misconduct (Commission of a Serious Offense). Without his separation package , the NDRB was unable to determine if the Applicant’s command notified him for all of these bases for separation, which was mandatory. However, he clearly met the requirements for separation due to Alcohol Rehabilitation Failure and is extremely fortunate that he was not separated with an Under Other Than Honorable Conditions characterization due to Misconduct (Pattern of Misconduct) or Misconduct (Commission of a Serious Offense). The NDRB determined the Applicant’s discharge was proper and equitable. Relief denied.
Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant submitted a statement that he intends to go to college to study pre-med. 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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he 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 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 for additional information.

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 29, 23 November 2009 until Present, Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE OR MULTIPLE DRIVING UNDER THE INFLUENCE (DUI) / DRIVING WHILE INTOXICATED (DWIs).
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), 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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