ex-OS2, USN 
ND07-01010

Current Discharge and Applicant’s Request

Application Received:  20070717 	Characterization Received:  
Narrative Reason:  PATTERN OF MISCONDUCT 	Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. CO recommended honorable discharge

Decision

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

Date:  20080110		Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ().  The Applicant claims that his Commanding Officer (CO) recommended to the Separation Authority that the Applicant receive an honorable discharge, and submitted a copy of the purported recommendation.  Applicant indicated that he was apprised of another, unsigned, version of the CO’s recommendation letter with a recommendation for a characterization of service as under other than honorable conditions.  The Board noted that, had the CO wanted to give the Applicant an honorable discharge, he could have simply executed a local separation using notification procedures.  Instead, he used administrative board procedures, raising the possibility of an other than honorable discharge.  However, because the Applicant’s service record did not contain copy of the administrative separation package and the documents submitted by the Applicant appeared regular on its face, the Board considered the Applicant’s discharge in light of a recommendation for an honorable discharge.  The Board noted that the CO’s recommendation was not binding on the Separation Authority andthat characterizing the Applicant’s service as under other than honorable conditions was within the Separation’s Authority discretion, and determined that , in light of the Applicant’s record of misconduct, a characterization of service as under other than honorable conditions was not inconsistent with standards of naval discipline.   

Issue 2 ().  The Board noted that the second reason for the proposed separation on the Applicant’s notification, “Counseling and Rehabilitation Failure” per MILPERSMAN 1910-202, did not constitute a separate, or additional, reason for administrative separation.  Separation for the reason of misconduct – pattern of misconduct does require evidence of counseling and rehabilitation failure; however, that failure is not, in itself, a separate reason for separation.  The Applicant’s record clearly demonstrates that the reason for his separation, misconduct – pattern of misconduct, was factually supported and warranted.  Therefore, the Board determined that the Applicant was not prejudiced by this administrative error.

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)	19990830 - 19990906  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19990907		Years Contracted:  ; Extension:  42 MONTHS	Date of Discharge:  20061109
Length of Service:  07  Yrs  02  Mths  03  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:  		Age at Enlistment:  		AFQT:  84	Highest Rank/Rate:  OS2
Evaluation marks (# of occasions):	Performance:  3.3(4)	Behavior:  2.8(4)	 	OTA:  3.14 
Awards and Decorations (per DD 214):  NMCAM, NDSM, GWOTSM, GWOTEM, SSDR(2), AFEM

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

19990907:	Enlistment waiver for driving under the influence (DUI) granted this date.

20000201:	NJP – Viol UCM Art. 92 (2 specs) – wrongfully possess alcohol and failed to report female in male room on 20000127.
	Awarded – FOP ($150.00) for (1 month); Restr (10 days); Extra Duties (10 days).
	[Extracted from Applicant document submission.]

20000201:	Retention Warning for failure to obey order or regulation (2 specs).
	[Extracted from Applicant document submission.]

20050902:	Medical Record:  Reason for visit:  Completed Outpatient Treatment at SARP 32nd Street.
	Diagnosis:  Alcohol Abuse
	Recommendation: Abstain from alcohol; weekly DAPA meetings; 3 AA meetings per week; attend Continuing Care orientation.

20051115:	NJP -- Viol UCMJ Art. 134 - Drunkenness.
	Awarded - Restr for (30 days).
	[Extracted from Applicant document submission.]

20051115:	Retention Warning for drunkenness.
	[Extracted from Applicant document submission.]

20051130:	Applicant extended enlistment by 15 months.  New EAS 20070306.
	[Extracted from Applicant document submission.]

20060223:	Medical Record:  Reason for visit:  Completed 4 weeks Residential Treatment at SARP Loma Point. Referred for unfit for duty incident (BAC .07).
	Diagnosis:  Alcohol Dependence
	Recommendation: Command monitored aftercare; weekly DAPA meetings; minimum 3 AA meetings per week; minimum 1 Continuing Care Group meeting per week.

20060306:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence; Art. 87 – Missing ship’s movement; Art 92 – Failure to obey order or regulation.
	Awarded - Restr for (30 days).
	[Extracted from Applicant document submission.]

20060306:	Retention Warning for unauthorized absence, missing ship’s movement and failure to obey order or regulation.
	[Extracted from Applicant document submission.]

20060817:	NJP -- Viol UCMJ Art. 112 – Drunk on duty; Art. 134 - Drunkenness.	
	Awarded – 20 hours of extra military instruction (EMI).
	[Extracted from Applicant document submission.]
	[NDRB note:  EMI is not punishment.  Therefore, while referred to as a third “NJP” in records, the Board determined that the Applicant was the subject of only 2 NJPs.  While not considered NJP, the Board did note that the behavior constituted rehabilitation failure and was relevant in considering the appropriate characterization of service.]

20060817:	Retention Warning for being drunk on duty and failure to obey order or regulation.
	[Extracted from Applicant document submission.]

20060925:	Medical Record:  Reason for visit:  Referred to SARP Loma Point for third treatment of diagnosed Alcohol Dependence.  Arrived to treatment with BAC 0.037, already w/withdrawal symptoms.  Last use “yesterday” 6 glasses of wine by 2000 (poor reliability).
	Diagnosis:  Alcohol dependence.
	Recommendation:  Risk of withdrawal considered elevated; not suitable for outpatient/residential treatment until medically treated for withdrawal; admitted for alcohol withdrawal.

Discharge Process*

Date Notified:					20060926
Reason for Discharge:	 - 
	COUNSELING AND REHABILITATION FAILURE**
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20060926
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 
	Administrative Board			

Commanding Officer Recommendation (date):	 (20061003)
Separation Authority (date):	COMPHIGRU THREE (20061019)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20061109

*Extracted from Applicant document submission
**See discussion of Issue 2

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 1910-140, SEPARATION BY REASON OF MISCONDUCT - 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.

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