ex-GM2, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:     
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20041021 - 20050413 COG         Active:  NONE

Period of Service Under Review:

Date of Current Enlistment: 20050414    Age at Enlistment: 18
Period of Enlistment: 4 Years 24 MONTHS Extension
Date of Discharge: 20110119     Highest Rank/Rate: GM2
Length of Service: 05 Year(s) 09 Month(s) 06 Day(s)
Education Level: 12     AFQT: 99
Evaluation Marks:        Performance: 4.0 (3)     Behavior: 3.7 (3)       OTA: 3.95

Awards and Decorations (per DD 214):     Rifle EX Pistol EX JSAM NMCAM (2) JMUA NUC NAVY "E" (2) AFEM ICM GWOTEM NDSM GWOTSM HSM SSDR (3) NMCOSR (2) ESWS EAWS EWS

Periods of UA/CONF: NONE

NJP: 1

- 20071126:      Article 92 (Failure to obey order or regulation; O/A 20071120 at Conway, S.C., SMN did wrongfully drink and drive)
         Article 111 (Drunken or reckless operation of a vehicle, aircraft or vessel; O/A 20071120 at Conway, S.C., SMN did physically control a vehicle while impaired by alcohol)
         Awarded: FOP RIR RESTR EPD Suspended: FOP RIR
         [NAVPERS 1626/7 provided at hearing by Applicant]

SCM: NONE SPCM: NONE CC: NONE Retention Warning Counseling: NONE


NDRB Documentary Review Conducted (date):        20130307
NDRB Documentary Review Docket Number:   ND12-01265
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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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), 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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DEPARTMENT OF THE NAVY

NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Directed Decision by Secretarial review authority

By determination of the Secretarial Review Authority, t he Characterization shall change to HONORABLE.
By determination of the Secretarial Review Authority , the Narrative Reason shall remain ALCOHOL REHABILITATION FAILURE .
By determination of the Secretarial Review Authority , the Reenlistment Code shall remain RE- 4 .

Pursuant to the Secretarial Review Authority (SRA) letters of April 16, 2015, May 26, 2015, and June 15, 2015, the SRA directed that the awarded characterization of service shall be upgraded to HONORABLE, and the corresponding narrative reason for separation shall remain ALCOHOL REHABILITATION FAILURE, and the corresponding reentry code will remain RE-4.

The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm. The Applicant is directed to the Addendum for additional information.

Applicant’s Issues

1.       The Applicant contends that his discharge was based on an isolated event in which the court charges were subsequently dismissed and does not accurately reflect the character of his service.
2. The Applicant contends his post-service achievements further illustrate that his in-service misconduct was an aberration.

Original Decision

Date: 20140313   PERSONAL APPEARANCE HEARING Location: Washington D.C.   Representation: NONE

By a vote of 5-0 the Characterization shall change to HONORABLE.
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.
By a vote of 5-0 the Reenlistment Code shall change to RE-1 .

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 governmental 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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation) and Article 111 (Drunken or reckless operation of a vehicle, aircraft or vessel). The Applicant attended Substance Abuse Rehabilitation Program (SARP) Level I in 2008 and again prior to discharge in November 2011. Based on having an alcohol related incident after receiving alcohol rehabilitation treatment, his command administratively processed him for separation as an 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 consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

Issue 1-2: (Decisional) (Propriety/Equity) RELIEF WARRANTED. The Applicant contends that his discharge was based on an isolated event in which court charges were subsequently dismissed and which do not accurately reflect the character of his service. Additionally, the Applicant claims his post-service achievements further illustrate that his in-service misconduct was an aberration. During opening remarks at the personal hearing, he requested a change in narrative and reentry code in addition to the change in characterization of the discharge. The Applicant provided copies of in-service awards and evaluations as well

as court documents, personal references, and a post-service performance evaluation. In addition, he provided testimony regarding his enrollment in VA sponsored technical training and participation in the family restaurant. The Applicant’s service record contains superlative performance marks; shows deployments to the Horn of Africa and Iraq; completion of Enlisted Warfare Specialist, and Enlisted Expeditionary Warfare Specialist qualifications; and numerous personal achievement medals.

The Applicant was discharged in January 2011 after reporting to his command that DUI charges were pending from the Commonwealth of Virginia. In November 2007, the Applicant had completed SARP Level I outpatient training following a civil incident. At the time of the November 2007 incident, the Applicant neither presented a pattern of alcohol misuse, nor was enrolled in a command monitored Continuing Care program following completion of the SARP training. The Applicant was subsequently acquitted of the civil conviction by the Conway County S.C. Court because the arresting officer did not find the Applicant driving while impaired/intoxicated, but merely asleep at the wheel in a parking lot with the ignition turned off. The Applicant’s confirmed alcohol related incident occurred almost three years later in Virginia in which the Command used as support to process the Applicant for separation due to Alcohol Rehabilitation Failure.

Based upon review of the Applicant’s service and medical records as well as the Applicant’s testimony, the NDRB did not find any indication that the Continuing Care portion of the Navy Alcohol Rehabilitation Program was administered. The program mandated follow on counseling and support system could have reinforced the serious consequences of a second alcohol related offense. Moreover the Board determined that the combination of the initial charge being dismissed and the period of elapsed time between the incidents when balanced against the Applicant’s in-service and post-service achievements indicated that the misconduct was an aberration and not indicative of the member’s overall character. After detailed analysis and careful consideration of the facts and unique circumstances surrounding the Applicant's in-service and post-service record, the Board determined that full relief based on propriety and equity was warranted in this case. Accordingly, the Applicant's characterization of service shall change to Honorable.

Correspondingly, the narrative reason and separation code shall change to Secretarial Authority and JFF respectively. Concerning changing the narrative reason from Alcohol Rehabilitant Failure to Secretarial Authority, the NDRB found that Secretarial Authority is the more appropriate narrative reason as the NDRB did not find any indication that the Continuing Care portion of the Navy Alcohol Rehabilitation Program was administered or that the Applicant received the program’s mandated follow on counseling and support system to reinforce the serious career-ending consequences of a second alcohol related offense.

Regarding the Re-Code change, the NDRB unanimously determined that a change to a RE-1 Code is substantially related to the NDRB’s change to the applicant’s discharge characterization and narrative reason at the time of discharge. The NDRB found that the Applicant warrants an upgrade and corresponding change to the RE-Code because the underlying facts for the discharge did not exist or were improperly applied as detailed in the above paragraphs.

Summary: After a careful review of the Applicant's post-service documentation and official service records, and the facts and circumstances unique to this case, the Board found the discharge was improper and inequitable at the time of discharge. Therefore, the awarded characterization of service shall be upgraded to HONORABLE. The corresponding narrative reason for separation shall change to SECRETARIAL AUTHORITY with a separation code of JFF. The associated reentry code will be updated to RE-1.

The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm. The Applicant is directed to the Addendum for additional information.

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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