FOR
 ex-MS2, USN
ND07-00011

Current Discharge and Applicant’s Request:

Application Received:  				20060927
	Characterization of Service:		
	Reason for Discharge:			
	Discharge Authority:			MILPERSMAN 1910-144
	Duty Assignment/Command at Discharge:	quality of life pm storefront new london, ct

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1. Discharge due to sever problem with alcohol.
						2. Post – employed, married, productive member of society, no further 							incidents.

Decision:

By a vote of  the Characterization shall  .
By a vote of  the Reason for Discharge shall   - .

Date of Decision:					20070816
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Discussion

Decisional Issues:

Issue 1 ():  The Applicant contends that his discharge was inequitable because of his severe alcohol problem.  The Applicant’s service was marred by a three civilian convictions for driving under the influence of alcohol.  Twice the navy allowed the Applicant to attend alcohol rehabilitation treatment.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.

Issue 2 ():  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided in his statement to the board that he is now married, employed, a productive member of society and has had no further incidents as documentation of his post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the characterization of his service at discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19920804 - 19930725  
Active:   					19930726 - 19980118   
	USN					19980119 - 20001018   HON

Period of Service Under Review:
Date of Enlistment:  				20001019
Years Contracted:  				
Date of Discharge:				20031110
Length of Service
	Active:					03  Yrs  00  Mths  22  Dys  (does not exclude lost time)
	Inactive:					00  Yrs  00  Mths  00  Dys
	Time Lost During This Period:		

Education Level:  				
Age at this Enlistment:  				
AFQT:  						42
Highest Rate/Rank:				MS2

Performance Evaluation Averages (number of marks):
						Performance: 4.2 Behavior: 2.5 OTA: 3.60 (4)

Awards and Decorations (as listed on the DD Form 214):  NAVY ACHIEVEMENT MEDAL, SECOND GOOD CONDUCT FOR PERIOD ENDING 01JUL05, NAVY EXPEDITIONARY MEDAL, NATIONAL DEFENSE SERVICE MEDAL (2), SEA SERVICE DEPLOYMENT RIBBON, ENLISTED SUBMARINE BREAST INSIGNIA

Service Record Entries Related to Characterization of Service or Reason for Discharge

20001019:	Reenlisted this date for a term of 6 years.

20030714:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to civil conviction and by reason of alcohol rehabilitation failure.

20030714:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

20030808:	An Administrative Discharge Board, based upon the preponderance of evidence and by unanimous vote, found that the Applicant had committed misconduct due to civilian conviction and was an alcohol rehabilitation failure, however, by a 2-1 vote recommended retention.   

20030821:	Commanding Officer, Naval Submarine Base New London, recommended to Commander Navy Personnel the Applicant’s discharge.  Commanding Officer’s comments:  “I do not agree with the administrative board’s recommendation for retention.  MS2 S_ (Applicant) has had a total of three alcohol related incidents since 1998 – all involving operation of a motor vehicle while under the influence.  Despite completion of Alcohol Rehabilitation treatment following both the first and second incidents, in April of this year , MS2 S_ again chose to drive an automobile while under the influence of alcohol.  This decision resulted in a single car rollover accident on a busy interstate highway.  MS2 S_’s actions on each of these three occasions had the potential to cause death or serious bodily injury; he has shown total disregard for not only his own safety but also that of others as well.  His conduct cannot be tolerated and is detrimental to the good order and discipline of the Navy.  I have reviewed enclosures (1) through (5), and despite the request contained in enclosure (6), recommend separation from the naval service.”

20030903:	Commander Navy Personnel recommended to the Assistant Secretary of the Navy the administrative discharge package of the Applicant recommending approval by reason of misconduct due to civilian conviction with a characterization of service as general under honorable conditions.

20031016:	Assistant Secretary of the Navy approved the request for separation by reason of misconduct due to civilian conviction with a characterization of service as general under honorable conditions.

20031022:	Commander Navy Personnel directed the Applicant’s discharge by reason of misconduct due to civilian conviction with a characterization of service as general under honorable conditions.

20031110:	Applicant discharged by reason of misconduct due to civilian conviction with a characterization of service as general under honorable conditions.

Elements of Discharge:  [INVOLUNTARY]
Date Notified:	20030714
Reason for Discharge	 - 
	ALCOHOL REHABILITATION FAILURE
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:	20030714
Rights Elected at Notification:
              Consult with Counsel	
              Obtain Copies of Documents	
              Submit Statement(s) (date)	
              Administrative Board	
Administrative Board Date:	20030808
               Findings, by preponderance of the evidence:	By   -  .
	By  
              Recommendation on Separation: 	By  

Commanding Officer Recommendation (date):	 (2030821)
Asst Sec of Navy (M&RA)(date)			Approved (20031016)
Separation Authority (date):	COMNAVPERSCOM MILLINGTON TN (20031022)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20031110

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				2
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-144 (previously 3630610), Separation by Reason of Misconduct - Civilian Conviction. 

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 111 (drunken driving).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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