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NAVY | DRB | 2011_Navy | ND1101570
Original file (ND1101570.rtf) Auto-classification: Denied

ex-UTCN, USN
Current Discharge and Applicant’s Request

Application Received: 20110610
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)        20080109 - 20010916     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20010917     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070105      Highest Rank/Rate: UT3
Length of Service: Y ear s M onth s 19 D a ys
Education Level:        AFQT: 46
Evaluation M arks:         Performance: 3.6 ( 7 )      Behavior: 2.6 ( 7 )        OTA: 3.21

Awards and Decorations ( per DD 214):      Rifle EX GCM NDSM OSR HSM S CWS GWOTSM

Periods of C ONF :

SCM: NONE SPCM: NONE CC: NONE

NJP :
- 20020205:      Article 86 (Absence without leave)
         Article 92 (Failure to obey order or regulation)
          Awarded: NFIR Suspended: NFIR

- 20020830 :      Article 92 (Failure to obey order or regulation)
         Article 134 (General Article, incapacitation for duty)
         Awarded: RIR FOP RESTR EPD Suspended:

- 20061208 :      Article 111 (Drunken or reckless operation of a vehicle, 20061123)
         Awarded : RIR FOP RESTR EPD Susp ended:

Retention Warning Counseling : 1

- 20020205 :       For absence without leave and failure to obey order or regulation

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ RIFLE EXPERT RIBBON , GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, OVERSEAS SERVICE RIBBON, HUMANITARIAN SERVICE MEDAL, SEABEE COMBAT WARFARE SPECIALIST, GLO B AL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3) , LETTER OF APPRECIATION ”

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:                  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 11, effective 26 April 2005 until 19 May 2008, 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 Applicant contends his injuries were contributing factors in his misconduct.
2.       The Applicant contends he did not receive proper medical treatment.
3.       The Applicant contends his rec ord of service outweighs his misconduct.

Decision

Date : 20 1 2 0822             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 Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and three nonjudicial punishments (NJPs) for violations of the U niform Code of Military Justice (UCMJ): Article 86 (Absence without leave) , Article 92 (Failure to obey order or regulation , 2 specifications ) , Article 111 (Drunken or reckless operation of a vehicle, 20061123) , and Article 134 (General Article, incapacitation for duty) . The Applicant self admitted to alcohol treatment following his first NJP in 2002. Following his second NJP , his command submitted a waiver to retain the Applicant afte r he had become an Alcohol Rehab ilitation Failure. The Applicant was administratively processed for separation following his third reported alcohol - related incident . 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 entitl ed to an administrative board.

: (Decisional) ( ) . The Applicant contends his injuries were contributing factors in his misconduct. The Applicant had one NJP and a retention warning counseling on 5 February 2002 for violating Articles 86 and 92 . The Applicant also re ceived a n N JP for violating Articles 92 and 134 on 30 August 2002 , thus creating a pattern of misconduct prior to injuries he suffered at the beginning of 2006 . On 4 April 200 6 , a medical board concluded that due to his cognitive dysfunction, the Applicant was unfit for release from active duty . This conclusion , however, does not mean that the Applicant had no control over his behavior, and it does not excuse the multiple instances of m isconduct carried out by the Applicant prior to his injuries . There is nothing in the Applicant’s medical or service records that indicate that he was either not responsible for his actions or should not be held accountable for his misconduct. Violation of UCMJ Articles 92, 1 11 , and 1 34 are all considered serious offenses that warrant a punitive discharge after adjudication at a court-martial. The Applicant’s command, however, decided to take the more lenient route by administratively discharging him. Relief denied.

: (Decisional) ( ) . The Applicant contends he did not receive proper medical assistance. The government presumes 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 claim. Upon review of the Applicant’s medical records, he was treated on numerous occasions at Naval Medical Facilities and specialty clinics following his injury in April 2006 . Therefore, the Board concluded the Applicant’s discharge was proper, and the characterization was equitable and consistent with that given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant submitted documentation, photographs, and a statement from his father describi ng his performance and conduct during his enlistment. 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, 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 .

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.


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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