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NAVY | DRB | 2012_Navy | ND1200315
Original file (ND1200315.rtf) Auto-classification: Denied


ex-DC3, USN
Current Discharge and Applicant’s Request
Application Received: 20111122
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)        20010726 - 20010923     Active:            20010924 - 20050804
                                             20050805 - 20090802

Period of Service Under Review:
Date of Current Enlistment: 20090803     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110202      Highest Rank/Rate: DC2
Length of Service: Y ear( s ) M onth( s ) 00 D a y ( s )
 Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 3.36

Awards and Decorations ( per DD 214):      (3) (2) (6) ESWS

Periods of UA /C ONF :

NJP :
- 20101014 :      Article (Failure to obey order or regulation)
         Article (Drunken or reckless operation of vehicle, aircraft, or vessel)
         Awarded: NFIR Suspended: RIR Suspension vacated 20101109

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

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 010924 UNTIL 090802 ”

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 :        


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

Applicant’s Issues

 1.        The Applicant contends his discharge was based on two incidents that were four years apart in a nine - year career, both of which were off duty.
2.       The Applicant contends he fought his alcohol addiction on his own with no support from his command, was treated unfairly over his DUI, and was improperly separated as an alcohol treatment failu re when the OPNAV instruction states that Level I outpatient treatment should not be considered when discharging a servicemember for Alcohol Rehabilitation Failure .
3.       The Applicant contends he was a recognized, high-level Sailor who always put the ship first and was never counseled for a single on-duty incident of any level.
 4.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date : 20 1 2 1206             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 for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation) and Article (Drunken or reckless operation of vehicle, aircraft, or vessel). Based on the offenses committed by the Applicant, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review . However, t he Applicant has an HK Q separation code on his DD Form 214, which indicates he waived his right to request an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was based on two incidents that were four years apart in a nine-year career, both of which were off duty. The Applicant was not separated based on two incidents that were four years apart. He was separated for committing a serious offense per Naval Military Personnel Manual Article 1910-142 after being found guilty of violating UCMJ Article 92 (Failure to obey an order or regulation) and Article 111 ( Drunken or reckless operation of vehicle, aircraft, or vessel) at an NJP in October 2010. The Applicant completed two previous Honorable enlistments from September 2001 to August 2009. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. In his third enlistment, which started in August 2009, he was found guilty at NJP and subsequently processed for administrative separation due to Misconduct (Commission of a Serious Offense). The fact that the offense occurred off duty is irrelevant. Sailors on active service fall under the provisions of the UCMJ whether on duty or off. Violation of UCMJ Articles 92 and 111 are considered serious offenses since they warrant a punitive discharge (i.e., Bad Conduct Discharge) as the result of a Special or General Court-Martial per Appendix 12 of the Manual for Courts-Martial. His command, however, opted for the more lenient administrative separation processing and further recommended a very lenient characterization of service of Under Honorable Conditions (General). After a complete review of the records, the NDRB determined the discharge was proper and equitable. Relief denied.

 Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he fought his alcohol addiction on his own with no support from his command, was treated unfairly over his DUI, and was improperly separated as an alcohol treatment failure when the OPNAV instruction states that Level I outpatient treatment should not be considered when discharging a servicemember for Alcohol Rehabilitation Failure. The Applicant was not separated due to Alcohol Rehabilitation Failure but was discharged due to Misconduct (Serious Offense) after he was found guilty of violating UCMJ Articles 92 and 111 at NJP. Although his administrative separation package was not found in his record, it is possible that he was also recommended for separation due to Alcohol Rehabilitation Failure. When processing a servicemember for

administrative separation, a command is obligated to notify the servicemember of all applicable reasons for separation. The final decision as to the Narrative Reason for Separation rests with the Separation Authority. In the Applicant’s case, the Separation Authority determined the reason for separation w as Misconduct (Serious Offense) and the characterization of service was Under Honorable Conditions (General).

The Applicant mentioned that he attended Level I outpatient treatment after his NJP. If this was his only alcohol treatment over his three enlistments, then he was not an alcohol treatment failure unless he failed to complete the post-NJP treatment. Also, OPNAVINST 5350.4D (4 Jun 09) lists IMPACT training as not being able to be used to discharge a servicemember as a treatment failure. However, an alcohol-related incident after Level I outpatient treatment (which is different than IMPACT) can be used to separate a servicemember. It is unclear what alcohol treatment the Applicant received over his career, but it is also irrelevant since he was not ultimately separated as a treatment failure but was separated due to Commission of a Serious Offense. After a complete review of the records and the Applicant’s statement, the NDRB determined the Applicant received no unfair treatment and was properly and equitably separated due to Misconduct (Serious Offense) with an Under Honorable Conditions (General) characterization. Relief denied.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he was a recognized, high-level Sailor who always put the ship first and was never counseled for a single on-duty incident of any level. He submitted four character reference letters from a former chief and officers who served with the Applicant. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Articles 92 and 111 are two such offenses that warrant processing for administrative separation regardless of grade, performance, time in service, or whether the incident occurred on or off duty. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given ot hers in similar circumstances. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for an upgrade. The Applicant submitted a letter from his wife. 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. 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until 17 August 2011, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 and Article 111.


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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