ex-ABEAA, USN

Current Discharge and Applicant’s Request

Application Received: 20080731
Characterization of Service Received: 
Narrative Reason for Discharge:  SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20050719 - 20051030  		Active:   

Period of Service Under Review:
Date of Enlistment: 20051031	Period of Enlistment:  Years   Extension	Date of Discharge: 20080407
Length of Service:  Years     Months  07 Days	Education Level: 	Age at Enlistment: 	AFQT: 56
Highest Rank/Rate: 	ABEAN	Evaluation Marks: Performance:	NFIR	Behavior: NFIR	OTA: NFIR
Awards and Decorations (per DD 214):	NDSM GWOTSM GWOTEM SSDR NER

Period of UA: 0700, 20080307 to 2359, 20080309 (2 DAYS)

NJP:  
- 20070919:  Article 86 (UA, from Substance Abuse Rehabilitation Clinic and UA from 0700, 20070805 to 0815            
                                       20070806 (1 DAY))
                      Article 134 (Drunkenness - incapacitation for performance of duties through prior wrongful indulgence in   
                                          intoxicating liquor or any drug)  
                      Awarded:      Suspended:  

- 20080312:  Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer or petty officer)
                     Article 120 (Rape, sexual assault and other misconduct)
                     Awarded:     Suspended:  

SCM:      SPCM:      CC:  

Retention Warnings:  
- 20070919:  For CO’s NJP of 20070919 for VUCMJ, Article 86-Unauthorized absence from Substance Abuse  
                     Rehabilitation Program Clinic, UA from 0700, 20070805 to 1815, 20070805 and Article 134-
                     Drunkenness-Incapacitation for performance of duties through prior wrongful indulgence in intoxicating  
                     liquor or drugs. 

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/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 Congress member:    

Related to Post-Service Period (cont):

		- Letter from U. S. Senator R. B., North Carolina. 

              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 91- Insubordinate conduct, Article 120- Rape, sexual assault or other misconduct and Article 134 (Drunkeness, incapacitation for performance of duties).

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

Applicant’s Issues

1.  Never committed the 2 charges; taken advantage of by the commands Sexual Assault Victim Intervention (SAVI) coordinator. 
2.  Self referred to treatment and did not intend to be discharged for alcohol treatment failure.

Decision

Date:  20081121           	Location:  Washington D.C.	Representation:  CILVIAN COUNSEL

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

Discussion

:  ()  .  The Applicant feels his discharge is unsuitable and should be upgraded to “Honorable” because the SAVI Coordinator took advantage of him and he did not commit the two charges.  
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 service was marred by one retention warning and two NJP for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA), Article 91 (Insubordinate conduct), Article 120 (Rape, sexual assault or other misconduct), and Article 134 (Drunkenness, incapacitation).  There is sufficient evidence in the record to support the Applicant’s discharge based on misconduct due to commission of a serious offense as evidenced by the serious offenses for which he was punished at NJP.  The Applicant’s contention he did not commit the two offenses is vague in that he does not specifically identify the offenses.  Furthermore, there is no evidence in the record nor provided by the Applicant to support his allegations of being harassed by the SAVI Coordinator.  Even if the harassment could be verified, it would not excuse or mitigate his misconduct. 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 far short of that required for an upgrade of his characterization of service.  

For the edification of 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 discharge “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  The Applicant’s misconduct constitutes a significant departure from that expected from a Sailor in the U.S. Navy.  The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

:  ()  .  The Applicant also contends his discharge should be upgraded because he self referred for treatment and did not intend to be discharged for alcohol rehabilitation failure.  The medical records reflect the Applicant was diagnosed as alcohol dependent, completed a four week residential treatment program 7 September 2007 and was placed on an aftercare program.  Based on the DAPA note of 13 January 2008, the Applicant was deemed a treatment failure when he failed to comply with the aftercare program.  Accordingly, the Board determined there was sufficient evidence to support separation due to alcohol rehabilitation failure.  The Applicant’s assertion he self referred does not serve as a defense to his failure to complete the aftercare program.  The Board determined the awarded discharge characterization was appropriate and 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   

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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