ex-MMFR, USN
ND07-00756

Current Discharge and Applicant’s Request

Application Received:  20070515 	Characterization Received:  
Narrative Reason:  MISCONDUCT - PATTERN OF MISCONDUCT 	Authority:  MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19880304 - 19880907  		Active:   
Period of Service Under Review:
Date of Enlistment: 19880908		Years Contracted:  ; Extension:  	Date of Discharge:  19921120
Length of Service:  04 Yrs  02 Mths  13 Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  87	Highest Rank/Rate:  MM3
Evaluation marks (# of occasions):	Performance:  2.7(3)	Behavior:  3.6(3)	 OTA:  2.73 
Awards and Decorations (per DD 214):  NDSM, JMUA

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

19910307:	NJP -- Viol UCMJ Art. 92 - Dereliction of duty, Art. 107 - False official statement.
		Awarded – FOP; RIR

19920416:	NJP -- Viol UCMJ Art. 90 - Fail to obey commissioned officer, Art. 134 - Incapacitated, 
		Awarded – FOP; RIR; Restr for (45 days); Extra duties (15 days).  Suspended: FOP; Restr

19920514:	Retention Warning for failure to obey a commissioned officer.

19920806:	SCM -- Viol UCMJ Art. 90 - Fail to obey lawful order, Art. 134 - Break restriction.
		Awarded -  RIR; Confinement (30 days).

19920806:	Applicant to confinement.

19920830:	Applicant from confinement.

19921027:	SCM -- Viol UCMJ Art. 86 - (1) Unauthorized absence (34 days, surrendered), (2) Failed to go to appointed place of duty, Art. 87 - Missing movement, Art. 134 - Incapacitated for duty.
		Awarded - FOP; RIR (); Confinement (24 days), Bread and water for 3 days.

20030828:	NDRB Documentary Review Conducted (ND03-00063); No change warranted.

Discharge Process

Date Notified:					19921027
Reason for Discharge:	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19921027
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (19921029)
Separation Authority (date):	BUPERS (19921110)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19921120

NDRB Documentary Review Conducted (date):	20030828
NDRB Documentary Review Docket Number:	ND03-00063
NDRB Documentary Review Findings:		NO CHANGE 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)  Salvation Army Certificates

Applicant Testified:  
Applicant Available for Questions:  
Witnesses: Ms. Andrea Heinzel 
Observers:  NONE

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 August 1991 until 4 March 1993), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT. 

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 violations of the UCMJ, Articles 86, 87, 90, 92, 107, and 134.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Discharge too harsh and youth/immaturity.
2.  Misconduct due to mitigating circumstances – alcohol.
3.  Post-service conduct.

Decision

Date: 20090402             Location: Washington D.C.       Representation: American legion

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (PATTERN OF MISCONDUCT).

: ()  .  The Applicant contends his problems in the Navy can be attributed to mistakes he made when he was young and immature and the discharge was too harsh.  While the Applicant may feel his youth was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to youth or immaturity.  An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  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.  The Applicant’s record of service was marred by one retention warning, two NJPs and two Summary Court-Martials (SCM) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence), Article 87 (Missing movement), Article 90 (Willfully disobeying a commissioned officer), Article 92 (Dereliction of duty), Article 107 (False official statement), Article 134 (Drunkenness, Incapacitated for duty), and Article 134 (Breaking restriction). These are considered serious offenses which could have resulted in a punitive discharge if adjudicated and awarded as part of a sentence by a special or general court martial.  The command opted instead for an administrative discharge.  The Board determined an upgrade would be inappropriate.

:  ()  .  The Applicant contends his alcohol dependency contributed to and mitigated his misconduct of record.  The record shows that alcohol was a contributing factor in one of the two NJPs and in one of the two SCMs.  So it is apparent that not all the misconduct in the Applicants record of service is alcohol-related.  It was surprising to the Board the Applicant was not referred to a medical assessment or treatment when he was incapacitated for duty on at least two occasions.  That being said, the Applicant is responsible for his actions.  The events that transpired during the Applicant’s career in the Navy are a direct result of Applicant’s self-denial that he has an alcohol problem and that he just stopped caring. Bottom-line, although the Applicant may feel his alcohol problem was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions.  The Board determined that an upgrade would be inappropriate.

:  ()  .   The Applicant contends that his post-service conduct merits an upgrade to a “General (Under Honorable Conditions)” characterization of service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides 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.  The Applicant provided references from his employer (eWeb Financial); AA Sponsor; an uncle; his mother, who gave him up at an early age, and Ms. Andrea Heinzel (fiancée).  The Applicant also presented documentation of his completion of programs sponsored by the Salvation Army.  The Applicant stated he has been sober since 2001, when he checked into a Salvation Army in-patient clinic, which he stayed a resident for eight months.  The Applicant also attends Alcoholic Anonymous (AA) meetings three times a week or more.  He is soon to be married and will be help raise his fiancée’s two children, ages 13 and 10 years old.

The Board commends the Applicant on his progress in fighting his alcohol addiction and also applauds his commitment to his employer, community, family, but more important – to himself in his fight each and every day to remain sober and drug-free.  The Board believes the Applicant can be an asset by taking what he has learned in his journey through life and what was taught to him by the Salvation Army and AA and apply it to help others break their own addictions.  Let it be understood the Board recognizes that nothing can ever mitigate the Applicant’s misconduct while serving in the Navy.  On the other hand, the Board determined that an upgrade to “General (Under Honorable Conditions)” would be appropriate based on the post-service efforts and circumstances pertaining to the Applicant.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

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 other medical related reasons.  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