ex-AEAN, USN
ND07-00729

Current Discharge and Applicant’s Request

Application Received:  20070504 						Characterization Received:  GENERAL 
Narrative Reason:  COMMISSION OF A SERIOUS OFFENSE 	Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Characterization not warranted by overall service record
			2.  Misconduct caused by alcohol
			3. Post-service conduct

Decision

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

Date:  20080313			Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ().  An 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.  The Applicant’s service was marred by a retention warning and nonjudicial punishment for violations of the Uniform Code of Military Justice, Articles 128 and 134.  Violation of Articles 128 is considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  There is also evidence in the record indicating that the Applicant had at least one other incident of drunken and/or disorderly conduct involving physical violence before the incident which led to his discharge.  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 and falls short of that required for an upgrade of his characterization of service.  

Issue 2 ().  The Applicant contends that his problems in the Navy can be attributed to his "Achilles’ heel,” alcohol.  While he may feel that his abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he 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 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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

Issue 4 (Propriety).  The Board noted that the Applicant was afforded an administrative discharge board even though he was not entitled to one under the Notification Procedure by which he was processed for discharge.  The Board also noted that the Separation Authority discharged the Applicant for the reason of misconduct – pattern of misconduct when the Applicant was notified of, and his administrative discharge board found, misconduct – commission of a serious offense.  The Board determined that the Applicant was not prejudiced by being afforded an administrative discharge board or by the clerical error in the Separation Authority’s action.

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 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “GENERAL (UNDER HONORABLE CONDITIONS)”
	  “MISCONDUCT”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20001018 - 20010626  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20010627	Years Contracted:  ; Extension:  	Date of Discharge:  20060824
Length of Service:  05  Yrs  01  Mths  28  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  82	Highest Rank/Rate:  AE3
Evaluation marks (# of occasions):	Performance:  4.3(6)	Behavior:  3.7(6)	 	OTA:  3.72 
Awards and Decorations (per DD 214):  OSR, MUC, GWOTEM, SSDR, NAVY "E"(2), GWOTSM, HSM(2), AFSM 

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

20030610:	Retention Warning for irresponsible use of alcohol and fighting.

20031011:	Medical Record:  Reason for visit:  Confinement physical.
	Diagnosis:  Normal exam.
	Recommendation:  Fit for confinement.

20031120:	DONCAF informed Applicant of intent to deny him a security clearance.

20040423:	Command endorsed Applicant’s undated response to DONCAF.

20040707:	DONCAF informed Applicant of final determination to deny him a security clearance due to failure to mitigate the Alcohol Consumption concern because of ongoing abuse from 1997 to as recently as March 2003, with most recent alcohol related incident occurring after second documented alcohol rehabilitation treatment/counseling; Criminal Conduct not mitigated, history is not isolated behavior and is considered recent; and failure to mitigate Personal Conduct concern because of lengthy involvement in criminal and otherwise questionable behavior not indicative of sound judgment and reliability. 

20050805:	Medical Record:  Reason for visit:  Laceration to right brow, punched approx ½ hour ago.  Smells of alcohol and does not deny consumption.
	Diagnosis:  ¾ inch laceration to right eyebrow.
	Recommendation:  4 sutures; A&I; follow up in am; follow up for suture removal.

20051114:	Applicant extended enlistment 12 months (aggregate 24 months).  New EAS 20070626.

20060515:	Medical Record:  Reason for visit:  Possible broken knuckle, punched another person during altercation in Bahrain approximately 1 month ago.
	Diagnosis:  Post traumatic joint inflammation, no fracture.
	Recommendation:  Released without limitations, follow up as needed.

20060518:	NJP -- Viol UCMJ Art. 128  – Assault x 2 on 20060416; Art 134 – drunk and disorderly on 20060416.
	Awarded – FOP ($967.99) for (2 months); RIR (E-3); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:					20060703
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20060703
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (none found in record)
	Administrative Board			*
	GCMCA review				*

*NDRB note:  The Applicant was processed under the Notification Procedure and was therefore not entitled to an administrative board.  However, he checked the ELECT box for a board was afforded one by his commanding officer.

Administrative Board Date:	20060713
     Findings, by preponderance of the evidence:     BY 3-0 VOTE  - 
     Recommendation on Separation:                        BY 3-0 VOTE 
     Recommendation on Characterization:               BY 3-0 VOTE 

Commanding Officer Recommendation (date):	 
Separation Authority (date):	CO, HELICOPTER MINE COUNTERMEASURES SQUADRON 15 (t)
              Reason for discharge directed:	 -   
              Characterization directed:	
Date Applicant Discharged:	20060824

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 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION 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.

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 128.

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