ex-AT3, USNR
ND07-00162

Current Discharge and Applicant’s Request

Application Received:  20061117	Characterization Received:  Under Honorable Conditions (General)
Narrative Reason:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: SECRETARIAL AUTHORITY
Applicant’s Issues:	1. Post service
2. Lack of representation during administrative discharge processing 

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  SECRETARIAL AUTHORITY.

Date:  20071107 	  	Location:  Washington D.C.   rEPRESENTATIVE: 
                                                                                                                                                           AMERICAN LEGION
Discussion

Issue 1  ():  After a thorough review of the records, testimony, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable at the time of issuance.  The Applicant provided verifiable employment references, transcripts from undergraduate school, birth certificates for his three children, marriage certificate, charitable contributions, community service, criminal background check, financial records and character references. The Board noted, since discharge, the Applicant has demonstrated a strong commitment to family, community and excellence.  The Applicant’s career progression and strong references demonstrated that he possessed character and drive that was not evident during his tour of active duty. After consideration of the Applicant's substantial post service accomplishments and good citizenship, the Board determined that full relief was warranted.  The Board voted three to two that the discharge characterization shall change honorable and voted unanimously that the reason for discharge change to Secretarial Authority.  

Issue 2 (:  Although not raised by the Applicant as an issue during the personal appearance hearing, the board on it’s own volition addressed the Applicant’s contention addressed in the DD form 293, that if he had received proper representation during the initiation of administrative processing he would not have been discharged.  The Applicant testified that he did elect his right to speak with defense counsel prior to electing his rights.  Applicant further admits that his defense counsel fully advised him of his rights and was prepared to fight the OTH at an administrative board if he so desired.  Nonetheless, the Applicant knowingly waived his right to a board.  Based on the documentary evidence presented and Applicant’s testimony the board found this claim to be without merit.

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, Medical and Service Record Entries, Discharge Process and evidence and testimony submitted by the Applicant, the Board found that although ,  

Summary of Service

Prior Service:
Inactive: USNR (DEP)	NONE		Active:   	
Period of Service Under Review:
Date of Enlistment: 19890828	Years Contracted:   (TAR, 4 year AD commitment);	Date of Discharge:  19930125
Length of Service:  03 Yrs 04 Mths 25 Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  79	Highest Rank/Rate:  AT3
Evaluation marks (# of occasions):	Performance:  3.8 Behavior:  3.8	 OTA:  3.8 (5) 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, NAVY "E" RIBBON

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19910301:	Applicant completed Navy Alcohol & Drug Safety Action Program (NADSAP).
 
19910612:	Incident Complaint Report: Applicant arrested 10 Jun 91 by NAS Whidbey Island Security for minor in possession/consumption of alcohol.  Observed Applicant walking with bottle of beer and attempted to conceal it on side of left leg; he had strong odor of alcohol.  Bottle later found in ditch.

19910613:	XOI-Violation of UCMJ, Art 92 for wrongful possession of alcohol-case dismissed by XO 26 June 1991.  Applicant admitted to possessing alcohol that he received from friends.

19910827	Island Co. Sheriff Coupeville, Washington Offense Report, Applicant arrested for DWI. At approx. 0125, while on routine patrol, deputy observed Applicant driving erratically, jerking vehicle from side to side; appeared asleep; operating at fluctuating speeds from 30-45 mph. Traffic stop initiated and patrol had to assist Applicant in identifying his car registration and driver’s license; lacked fine motor coordination, eyes bloodshot and watery, wreaked of a strong odor of alcohol, refused breath test and staggered as he was administered Field Sobriety Test-very slurred speech, unable to articulate alphabet or follow instructions.
 
19910827:	XOI: Violation of the UCMJ, Art 86, failure to report on time to appointed place of duty at 0700 (reported at 12:30).  Dismissed by XO with a verbal warning and recommendation for CAAC screen.

19911003:	CAAC, NAS Whidbey Island, Applicant referred due DWI (refused BAC) on 19910827.  Applicant did not appear dependent on alcohol.  Appears to be an alcohol abuser as evidenced by use interfering with responsibilities and safety, continues to use with the knowledge that it causes other problems.

19911003:	Retention Warning for (alcohol abuse).

19911029:	Applicant found guilty of DWI in District Court of Island County, Washington.
Fined $400.00, 365 days in jail (jail term suspended) and probation for 24 months.

19920117:	Applicant completed NADSAP Course.  Recommendation: Return to full duty; hold accountable for actions.

19920720:	CAAC, NAS Whidbey Island Evaluation:  Applicant referred due to his exposing his buttocks at Disneyland while intoxicated 19920622.  Applicant appears dependent on alcohol as evidenced by; use interfering with responsibilities and safety, increased tolerance, blackouts and uses knowing it causes other problems.  Applicant has attended NADSAP twice.  Applicant recommended for administrative separation via VA, and placed in an interim program consisting of a Medical Officer’s evaluation.
 
19920722:	Medical Officer’s examination revealed Applicant met the DSM-III-R criteria for psychoactive substance dependence.  Medical Officer recommended Level III, and VA treatment for dependence if requested prior to Discharge.

19920814:	CO's NJP -- Viol UCMJ Art. 134 – Indecent Exposure.  Awarded - RIR (E-3) suspended for 6 month, and 30d extra duties.

19920901:	Commanding Officer, Patrol Squadron 69 comments to Chief of Naval Personnel regarding the Applicants recommendation for discharge.  “AT3 M_ (Applicant) has been involved in 3 alcohol related incidents within the past year.  Despite counseling at XOI and level I he has established a continued pattern of alcohol related incidents as evidenced by a minor in possession charge, DUI, and indecent exposure.  AT3 M_ has no potential for further service.  In concurrence with his drug and alcohol evaluation of 20 Jul 92, I recommend that he be separated from the Navy and that the characterization of his discharge be General Under Honorable Conditions.” 

Discharge Process

Date Notified:					19920814
Reason for Discharge:	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19920818
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	
Commanding Officer Recommendation (date):	 (19920901)
Separation Authority (date):	BUPERS WASHINGTON DC (19920925)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19930125

19961216:	NDRB documentary record review Docket Number ND06-01305 conducted.  Determination: discharge proper and equitable; relief not warranted.

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Resume, Certificate of Marriage, Certificates of Birth, Knights of Columbus Certificate,  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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.

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 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:  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