ex-MMFN, USN

Current Discharge and Applicant’s Request

Application Received:  20080905
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19990415 - 19990425  	Active:  

Period of Service Under Review:
Date of Enlistment:  19990426	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20011005	Highest Rank/Rate:  MMFN
Length of Service:   Years     Months   10 Days
Education Level:  	AFQT:  36
Evaluation Marks:  Performance:  3.0 (1)               Behavior:  3.0 (1)           OTA:  3.00

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

Navy Enlistment Waiver:
	19990415:  Pre-service waiver for 2 Chart C’s (driving under the influence and leaving the scene of an accident) and for 2 Chart B’s (two public intoxications)  

NJP:     SCM:     SPCM:  

CC:  3
* 20000711:	Offense:  Driving under the influence (accident) 
		Sentence:  Fine $200.00 plus $30.00 court cost, jail for 6 months (suspended), operator’s license suspended for 12 months, and must successfully complete ASAP.

* 20001023:	Offense:  Failure to carry valid restricted permit and failure to yield to pedestrian.
		Sentence:  Fine $75.00 plus $5.00 court cost.

  - 20010118:	Applicant signed statement of understanding acknowledging appointment with a Licensed Independent Practitioner at the Addiction Rehabilitation Department in Norfolk on 20010118 at 0900 for an evaluation for alcohol abuse/dependency.  

  - 20010121:	Offense:  Driving under the influence (2nd).

- 20010312:	Applicant to Level II treatment at Addiction Rehabilitation Department in Norfolk, VA.

- 20010406:	Applicant released from treatment at Addiction Rehabilitation Department in Norfolk, VA.; signed continuing care plan for Addictions Rehabilitation Program stating he understood and agreed with content.

CC:  3 (cont)

* 20010510:	Offense:  Driving under the influence (2nd offense) from 20010121 
		Sentence:  Jail for 5 days, to be served on weekends and to be directed by Probation Officer, probation for 12 months, operator’s license suspended for 1 year, attend VASAP, fine $250.00 plus court cost.

* Represents actual conviction from civilian court. 

Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20061006
NDRB Documentary Review Docket Number:	ND06-00240
NDRB Documentary Review Findings:		NO CHANGE WARRANTED

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:    

                    Other Documentation:  

Applicant Testified:  
Applicant Available for Questions:  
Witnesses: Mrs. A. S. 
Observers:  NONE

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33 effective 9 July 2001 until 
21 August 2002, Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction. 

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 111 (Drunken or reckless operation of a vehicle).

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

Applicant’s Issues

1.  Discharge does not accurately reflect his character of service; mitigating circumstances with alcohol were involved. 
2.  Post service conduct. 

Decision

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

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

: ()  .  The Applicant contends that his “General (Under Honorable Conditions)” discharge does not accurately reflect his character of service and therefore requests an upgrade to “Honorable”.  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 three civilian convictions, which included two Driving Under the Influence (DUI’s) charges and a failure to carry a valid restricted permit and yield to a pedestrian.  These violations, if tried in a military court under the Uniform Code of Military Justice, are equivalent to violation of the following Uniform Code of Military Justice (UCMJ) Articles: Article 92 (Failure to obey a lawful order or regulation), Article 111 (Drunken or reckless operation of a vehicle) and Article 134 (Reckless endangerment).  These are considered serious offenses under the UCMJ.  For the edification of the Applicant, a service member may be separated based on commission of a serious military or civilian offense when the offense warrants separation and the offense would warrant a punitive discharge.  There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence.  

During the Notification for Separation process, the Applicant was given the opportunity to appear before an Administrative Separation Board due to the least favorable characterization of service being “Under Other Than Honorable Conditions”.  The Applicant appeared before an Administrative Separation Board of three members.   At the conclusion of the Administrative Separation Board, they found (by a unanimous vote) that based on the preponderance of the evidence, the Applicant committed misconduct due to commission of a serious offense and misconduct due to civilian conviction.  But the Administrative Separation Board also recommended retention of the Applicant in the U. S. Navy.  The Applicant’s commanding officer disagreed with this recommendation and recommended to the Chief of Naval Personnel the Applicant be discharged.  The decision was forwarded to the Assistant Secretary of the Navy (Manpower and Reserve Affairs), who approved the commanding officer’s recommendation the Applicant be separated from the Navy with a “General (Under Honorable Conditions)” characterization of service and the narrative reason being Misconduct due to a civilian conviction.

The NDRB concluded the Applicant could have easily received a lesser characterization for his misconduct, but felt his “General (Under Honorable conditions)” discharge was based on his good record of service within the Navy, excluding his civilian misconduct.  The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.

:  ()  .  The Applicant contends his post-service conduct merits an upgrade to an “Honorable” 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 the Mayor of the Town of Elkton, Maryland; the Chief of Police of Rising Sun Police Department; employment supervisor of six years; an AA Sponsor; the Executive Director of Phi Theta Kappa International Honor Society and Mrs. A. S.  In addition, the Applicant presented official college transcripts showing his progress in his pursuit for higher education, updated criminal background checks and correspondence with Congressman Gilchrest.  The Applicant stated he has been sober since 21 January 2001 and attends AA meetings 3 times a week.  He is currently married for almost two years, and expecting his first child very soon.   

The NDRB 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 everyday to remain sober.  However, a “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  The NDRB determined the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the length of service and the violations involved, and that 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