ex-FT3, USN

Current Discharge and Applicant’s Request

Application Received:  20080117
Characterization of Service Received:  
Narrative Reason for Discharge:   (OTHER)
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20030909 - 20030925  		Active:   

Period of Service Under Review:
Date of Enlistment: 20030926	Period of Enlistment:   Years   Extension	Date of Discharge:  20070416
Length of Service:    Yrs    Mths  21  Dys	Education Level:  	Age at Enlistment:  	AFQT:  NFIR
Highest Rank/Rate:  FT2	Evaluation Marks:  Performance: 3.0(1)	Behavior: 1.0(1)	OTA:  2.43
Awards and Decorations (per DD 214): NDSM NASR  Pistol  GWOTSM 

NJPs:	
20041229:  Article 92 (Failure to obey a lawful order),
	        Article 134 (Disorderly conduct, drunkenness). 
                   Awarded -   FOP.  Susp - NONE.  [Extracted from CO’s message].

20070330:  Article 86 (Unauthorized absence),
                   Article 92 (Dereliction of duty). 
                   Awarded -   .  Susp - .

CC:	
20070122:  Offense: Driving under the influence of alcohol.
                   Sentence – Found not guilty.

Retention Warnings:  .

Administrative Corrections to the Applicant’s DD 214

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

	  “JKQ”
	  “MISCONDUCT (SERIOUS OFFENSE)”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  
Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe) 

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

Applicant’s Issues

1. Seeking GI Bill.
2. Made a mistake- was charged with DUI but found not guilty.

Decision

Date:  20080814		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

: The Applicant is seeking an upgrade in the characterization of his discharge in order to obtain the GI Bill and regain some self respect.   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum
for additional information regarding .

: ()  .  The Applicant is requesting an upgrade in his discharge from a “General (Under Honorable Conditions)” to an “Honorable”.  He admitted to wrongdoing but contends even though he was charged with DUI a civilian court found him not guilty.  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.  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 two non-judicial punishments for violations of the Uniform Code of Military Justice, Article 86 (Unauthorized absence), Article 92 (Dereliction of duty), and Article 134 (Disorderly conduct and drunkenness).   
 
In regard to the Applicant’s contention he was found not guilty of the DUI charge, this is confirmed by the Virginia Courts Case Information sheet which indicates the case was appealed in January 2007 and the Applicant was found not guilty.  Nonetheless, based on a review of the record, the Board determined there was sufficient evidence to support the basis for separation due to the commission of a serious offense with a discharge characterization of  “General (Under Honorable Conditions)”.  Other evidence considered during the Board review included, but was not limited to, a request for a waiver from administrative processing of the Applicant due to alcohol rehabilitation failure from the Commanding Officer, Naval Submarine Support Center, Norfolk, VA dated 3 April 2006; documentation of the Applicant’s continued alcohol related incidents and misconduct subsequent to Level III treatment in June 2006; and guidance pursuant to COMNAVPERSCOM message of 04182006.  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 with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  The Board determined an upgrade would be inappropriate. 

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 

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 92, Failure to obey lawful order, Article 134, Disorderly conduct.

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 or is referred to a court martial 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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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