Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200328

Original file (ND1200328.rtf) Auto-classification: Denied

ex-MASR, USN

Current Discharge and Applicant’s Request

Application Received: 20111129

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)        20020410 - 20020512     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020513     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060302      Highest Rank/Rate: MASN
Length of Service: Y ear( s ) M onth( s ) 20 D a y ( s )
Education Level:        AFQT: 64
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 1.6 ( 3 )        OTA: 2.76

Awards and Decorations ( per DD 214):      (3)

Periods of C ONF :

NJP :

- 20030603 :      Article (Failure to obey order or regulation, 2 specifications )
         Awarded: 30 CCU Suspended:

- 20051003 :      Article (Absence without leave)
         Article 89 (Disrespect toward superior commissioned officer)
         Article 92 (Failure to obey order or regulation)
         Article (General A rticle)
         Awarded : Susp ended:

- 20060207 :      Article (Failure to obey order or regulation, 2 specifications )
         Specification 1: Lawful general order
         Specification 2: Lawful order
         Awarded : Susp ended:

S CM :    SPCM:

C C :

- 20050902 :       Offense: Violation of Criminal Code of Japan, Article 261, Destruction of property
         Sentence : Fine of 100,000 yen, which was paid on 20050916

Retention Warning Counseling :

- 20030303 :       For on 20030203 you remained out in town past curfew hours while on the Exceptional Sailor List. A disciplinary review board convened on 20030227 for violation of UCMJ, Article 92, failure to obey lawful general order, CCFJ MSG DTG 17135Z AUG02; Policy for Liberty Pass Cards, curfew violation)

- 20051003 :       For CO’s NJP of 20051003 for violation of UCMJ Article s 86, 90, 92, 134

Administrative Corrections to the Applicant’s DD 214

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

         Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:       “NATIONAL DEFENSE SERVICE MEDAL, OVERSEAS SERVICE RIBBON (3), GLOBAL WAR ON       TERRORISM SERVICE MEDAL ”
         “ 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:                  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 seeks to reenlist .
2.       The Applicant seeks to use the GI Bill .
3 .       The Applicant contends his misconduct was due to his medical condition (alcoholism) , and he was only given a three - week course on alcoholism and not the proper treatment.
4.       The Applicant contends his record of service warrants consideration for an upgrade.

Decision

Date : 20 1 2 1220             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 NAVPERS 1070/613 (Page 13) warnings , for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave), Article 89 (Disrespect toward superior commissioned officer), Article 92 (Failure to obey order or regulation, 5 specifications), and Article (General A rticle) , and a civil conviction for destruction of property . Based on the offenses committed by the Applicant, command administratively processed for separation. The Applicant was notified of separation for Misconduct ( Pattern of Misconduct ) , Misconduct ( Serious Offense ) , and Alcohol Rehabilitation Failure. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Nondecisional) The Applicant seeks to reenlist. 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 B oard for Correction of Naval Records 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.

: (Nondecisional) The Applicant seeks to use the GI Bill. 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.

3 : (Decisional) ( ) . The Applicant contends his misconduct was due to his medical condition (alcoholism) , and he was only given a three - week course on alcoholism and not the proper treatment. Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment. Regulations require members who have an ongoing history of alcohol abuse to be medically screened for an alcohol problem. If diagnosed as dependent on alcohol by competent medical authority, which does not include the commanding officer, appropriate treatment must be offered prior to separation. The purpose of this treatment is not to rehabilitate a service member for further service but rather to provid e treatment before separation. However, the Applicant was provided with treatment and was allowed to continue his service in the Navy. Despite alcohol treatment, he had another alcohol-related incident. The Applicant’s commanding officer stated the Applicant “is either incapable or simply unwilling to abide by the terms of his substance abuse rehabilitation program and his conduct led himself in a manner not conducive to good order and discipline.” T he NDRB found that proper procedures were followed in providing the Applicant with alcohol rehabilitation treatment, noted that the Applicant was given multiple opportunities to correct his poor behavior , determined that the Applicant was responsible for his misconduct and that his alcoholism was not an excuse for the misconduct, and further determined that his discharge was warranted . Relief denied.

Issue 4: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his record of service warrants consideration for an upgrade. In the Applicant’s almost 3 years and 10 months of service, he received two retention counseling warnings, a civil conviction, and was found guilty at three NJPs for committing multiple serious offenses. Additionally, his performance evaluations reflect an overall trait average of 2.76, which is indicative of below-average performance and conduct. Despite being offered alcohol rehabilitation treatment and multiple opportunities to correct his poor behavior, the Applicant failed to adhere to his substance abuse program and continued to commit misconduct. Although the Applicant’s DD Form 214 reflects the awarding of a Good Conduct Medal, this is in error. To be eligible for a Good Conduct Medal, a servicemember must serve for three consecutive years without misconduct. Within the Applicant’s first three years of service, he had an NJP for violation of UCMJ Article 92. The NDRB will recommend to Commander, Navy Personnel Command that this error be corrected. After a complete review of the Applicant’s record of service, the NDRB determined the Applicant was responsible for his behavior and that the discharge was proper and more than equitable as misconduct of this severity and frequency typically results in an Under Other Than Honorable Conditions characterization of service. 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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NAVY | DRB | 2012_Navy | ND1200328

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