ex-RMSA, USN 
ND07-00589

Current Discharge and Applicant’s Request

Application Received:  20070328 	Characterization Received:  
Narrative Reason:  ALCOHOL REHABILITATION FAILURE Authority:  MILPERSMAN 3630550

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.Prejudiced because of my skin color
			2. Immature teenager/military is a drinking environment
  			3. Given OTH because I refused to reenlist

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall read MISCONDUCT.

Date:  20071120     Location:  Washington D.C Representation:   none                

Discussion

Issue 1():  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the color of his skin played a major part in the characterization of his discharge as OTH.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case; neither would such an injustice amount to a justification or as a defense for the Applicant’s own misconduct.  The evidence contained in the service record and documents presented by the Applicant indicates the following: 1) the Applicant went to NJP on 19921023 for violation of UCMJ, Art.128, assault and was awarded punishment, 2) he received a retention warning on 19921117 for substandard performance and an alcohol abuse incident, 3) on 19930729, less than a year later, he returned to NJP for violation of UCMJ, Art. 92, failure to obey lawful general regulation, and Art. 134, disorderly conduct/drunkenness, and was awarded punishment, and 4) on 19940621, he went to NJP for violation of the UCMJ, Art. 86, absence from unit and Art. 92, failure to obey lawful general regulation and was awarded punishment.  The summary of service clearly documents that misconduct due to commission of serious offenses was the reason the Applicant was discharged.  No other characterization could more clearly describe the Applicant’s performance.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge and characterization of service proper and equitable.

Issue 2 ():  The Applicant contends that his problems in the Navy were attributed to his immaturity and the fact that
"the military is a drinking environment."  While he may feel that his immaturity and abuse of alcohol contributed to his misconduct, the record clearly reflects his substandard performance, and repeated failure to obey lawful general regulations which demonstrated that the Applicant was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions  

Issue 3 ():  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that the command gave him an OTH because he refused to reenlist.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  Accordingly, the Applicant's other than honorable discharge was proper and equitable.

The following is provided for the edification of the Applicant.  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 in the civilian life subsequent to leaving the service.  However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 may be considered.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct.  At this time, the Applicant has not provided such documentation for the Board to consider.

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 submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19910730 - 19920616  		Active:   
Period of Service Under Review:
Date of Enlistment: 19920618		Years Contracted:  ; Extension:  	Date of Discharge:  19940902
Length of Service:  02  Yrs  02  Mths  15  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  38	Highest Rank/Rate:  RMSN
Evaluation marks (# of occasions):	Performance:  3.2(1)	Behavior:  3.2(1)	 OTA:  3.20 
Awards and Decorations (per DD 214):  NDSM, SSDR, SASM

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

19921023:	NJP -- Viol UCMJ Art. 128 - Assault.
	Awarded - FOP ($105.00) for (1 month); Restr for (14 days); Extra duties (14 days).

19921117:	Retention Warning for substandard performance, incident number one, in the case of alcohol abuse.

19930729:	NJP -- Viol UCMJ Art. 92 - Failure to obey lawful general regulation, under aged drinking Art. 134 - Disorderly conduct-pulling fire alarm/drunkenness.
	Awarded - FOP of ½ month pay for (1 month); RIR (E-1); Restr for (30 days); Extra duties (30 days).  RIR suspended for 6 months.

19940621:	NJP -- Viol UCMJ Art. 86 - Absent from unit, Art. 92 - Failure to obey lawful general regulation.
	Awarded - FOP ($466.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:					19940723
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19940723
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (19940720)
Separation Authority (date):	BUPERS (19940824)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19940902

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) 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 Jul y 1994 until 2 October 1996, 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