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NAVY | DRB | 2012_Navy | ND1201185
Original file (ND1201185.rtf) Auto-classification: Denied

ex-ATAN, USN
Current Discharge and Applicant’s Request
Application Received: 20120501
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       C ONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        19990916 - 19991005     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19991006     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20021218      Highest Rank/Rate: AT3
Length of Service: Year(s) Month(s) 13 D ay(s)
 Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.3 ( 6 )      Behavior: 2.0 ( 6 )        OTA: 2.75

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 20011121 :      Article (Absence without leave)
         Awarded: Suspended:

- 20020917 :      Article (Absence without leave)
         Awarded: Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling:

- 20011121 :      For CO’s NJP held this date for: UCMJ A rticle 86 , U nauthorized absence

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. Navy Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION.
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 an upgrade to qualify for employment, educational, and VA benefits.
2.       The Applicant contends his misconduct was the result of unresolved personal problems.
3.       The Applicant contends his post - service achievements are worthy of consideration for an upgrade .
4.       The Applicant contends his overall service was honorable.
 5 .       The Applicant contends his A dministrative S eparation B oard (ASB) was con ducted improperly and unfairly.

Decision

Date: 20 1 3 0307             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 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. T he 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 NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications). Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an A dministrative Separation B oard . The ASB voted 3-0 that the preponderance of the evidence showed that he met the requirements for separation due to a P attern of M isconduct and A lcohol R ehabilitation F ailure and 3-0 to recommend separation Under Other Than Honorable Conditions. The Applicant’s c ommanding o fficer concurred with the results of the ASB. However, the Separation Authority (Commander, Carrier Group Five), after reviewing the facts of the case and the ASB proceedings, ordered the Applicant to be discharged for Alcohol Rehabilitation Failure with a General (Under Honorable Conditions) characterization of service.

: (Nondecisional) The Applicant seeks an upgrade to qualify for employment, educational, and VA 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 re-characterization 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. Also, 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.

 : (Decisional) ( ) . The Applicant contends his misconduct was the result of unresolved personal problems. The Applicant contends his disciplinary problems were the result of stress caused by the drug use of his mother and aunt and his feelings of hopelessness in helping them. The NDRB recognizes that serving in the military is challenging. Most service members, however, serve honorably and therefore earn their Honorable discharges. In fairness to those service members, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment s , such as the Navy Chaplain, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The record does reflect the Applicant being seen by medical authorities to address his behavior and methods of coping , but it was after each instance of misconduct. The NDRB determined the Applicant’s personal problems were not mitigating factors in h is misconduct. Relief denied.


: (Decisional) ( ) . The Applicant contends his post - service achievements are worthy of 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. The Applicant provided a personal statement , a statement from a Volunteers of America (VOA) r epresentative, educational attendance and honor roll awards, character references, and evidence of volunteering at the V OA with recovering substance abusers. 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. The Board determined t he characterization of service was appropriate considering the length of service and UCMJ violations. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant contends his overall service was honorable. 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.

The Applicant stated that he was awarded two Good Conduct Medals. This is incorrect. To be awarded a Good Conduct Medal, a Sailor must serve without misconduct for three consecutive years. During the Applicant’s 3 years, 2 months, and 13 days of service, he was found guilty of violating UCMJ Article 86 at two NJPs. The confusion surrounding the two Good Conduct Medals likely arose from the Awards Page in his service record. The entries were made after each instance of misconduct to “restart” the three-year counter for the Good Conduct Medal and does not reflect the awarding of the medal.

 The Applicant’s record reflects alcohol treatment on two separate occasions and documentation supporting the command’s desire to get the Applicant help and give him a second chance after the first alcohol - related incident. After the Applicant’s second NJP in September 2002, his command processed him for administrative separation on the basis of Pattern of Misconduct and Alcohol Rehabilitation Failure and recommended he receive an Under Other Than Honorable Conditions characterization of service. The ASB found that he met both bases for discharge and recommended an Under Other Than Honorable Conditions characterization. The Separation Authority, however, determined to discharge the Applicant with a General (Under Honorable Conditions) characterization for Alcohol Rehabilitation Failure. Per Naval Military Personnel Manual (MILPERSMAN), (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION, characterization of service should be Honorable unless a General is warranted per MILPERSMAN Article 1910-304. Per Article 1910-304, a n Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Based on the Applicant’s record of service, which included two NJPs and a Page 13 retention warning, the NDRB determined his service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record. The NDRB found the Applicant’s characterization was proper, equitable , and consistent with the characterization given others in similar circumstances. R elief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends his ASB was conducted improperly and unfairly. During the separation proceedings, the Applicant exercised his right s to consult with counsel, request a hearing before an ASB, and submit a rebuttal to the separation. The Applicant’s counsel provided a letter of deficiency after the ASB, contending the ASB members showed bias and were confused on the difference between an unsworn and sworn statement. The S eparation A uthority and his JAG officer reviewed the administrative board proceedings, the letter of deficiency, and the Applicant’s c ommanding o fficer’s recommendations , determined the process and proceedings were proper, and ordered the Applicant’s discharge. The NDRB conducted a thorough review of the Applicant’s DD Form 293 and the documentation he submitted in support of his contentions, his service record, the ASB proceedings, letter of deficiency, and Separation Authority’s decision and determined there was no impropriety or inequity in the Applicant’s discharge process, his characterization of service , or the Narrative Reason for Separation. 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 N arrative R eason for S eparation shall remain . The Applicant remains eligible for a personal appearance hearing for 15 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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