ex-EMFR, USN
ND07-00876

Current Discharge and Applicant’s Request

Application Received:  20070614 	Characterization Received:  
Narrative Reason:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE 	Authority:  MILPERSMAN 3630600

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

Applicant’s Issues:	
1.  Alcohol Dependency contributed to and mitigated his misconduct.
2.  Post-Service conduct
Decision
Date:  20080515	  Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT-COMMISSION OF A SERIOUS OFFENSE.

Discussion

Issue 1 (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was inequitable because of his severe alcohol problem.  The Applicant stated his alcohol problem occurred after his nonjudicial punishment for violation of UCMJ Article 92 (Failure to obey a general order/regulation).  The Applicant’s record supports this statement (see ‘Medical/Service Record Entries Related to Characterization of Service’).   Therefore, the Board felt the Applicant’s misconduct was not mitigated by alcohol dependency and, with regard to this issue,  the Applicant’s discharge was proper and equitable.  

Issue 2 (Equity)  RELIEF WARRANTED.   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 numerous character statements and credible documentation of employment, community service, and absence of a criminal record or drug/alcohol violations since his discharge from Naval service.  The Board felt the Applicant had clearly demonstrated outstanding post-service conduct, and believes this partially mitigates his misconduct of record.   Accordingly, the Board voted 5-0 to change the Applicant’s discharge characterization to General (Under Honorable Conditions).  

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 - Commission Of A Serious Offense.

B.  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 92.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900625 - 19910211  		Active:   
Period of Service Under Review:
Date of Enlistment: 19910212		Years Contracted:  ; Extension:  	Date of Discharge:  19920612
Length of Service:  01  Yrs  04  Mths  01  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  80	Highest Rank/Rate:  EM3
Evaluation marks (# of occasions):	Performance:  2.5(2)	Behavior:  3.1(2)	 OTA:  2.90 
Awards and Decorations (per DD 214):  NDSM

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

19920102:	NJP -- Viol UCMJ Art. 92 - Failure to obey a lawful general regulation.
	Awarded - RIR ().

19920102:	Retention Warning for failure to follow the rules and regulations of the U.S. Navy.

19920228:	Drug and Alcohol Abuse Report:  Alcohol abuse, 4 to 7 times per week, ashore off duty.  Self-referral/disclosure 19920204.  CAAC and physician (MD) found applicant dependent and recommended Level III treatment.  Commanding Officer recommended separation via VA hospital.  Comments:  Applicant has no potential for further Naval Service due to his disclosure of marijuana use while on active service.

19920304:	Drug and Alcohol Abuse Report:  Marijuana abuse, less than monthly, ashore off duty.  Self-referral disclosure 19920213.  CAAC and physician found applicant not dependent.  Commanding Officer recommended separation via VA hospital.  Comments:  Applicant has no potential for further Naval Service due to his disclosure of marijuana use while on active service.

Discharge Process

Date Notified:					19920323
Reason for Discharge:	 - 
	 -  (SELF-REFERRAL)
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19920323
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (19920406)
Separation Authority (date):	BUPERS (19920504)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19920612

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) 

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