ex-MASN, USN

Current Discharge and Applicant’s Request

Application Received:  20080924
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)	20010926 - 20011110  	Active:	 20011111 – 20051110  HON

Period of Service Under Review:
Date of Enlistment:  20051111	Age at Enlistment:  
Period of Enlistment:   Years  NFIR Extension
Date of Discharge:  20070315	Highest Rank/Rate:  MA2
Length of Service:   Years     Months   04 Days
Education Level:  	AFQT:  46
Evaluation Marks:  Performance:  5.0 (1)               Behavior:  5.0 (1)           OTA:  4.86

Awards and Decorations (per DD 214):	Pistol   (3)     

Periods of UA/CONF:     SCM:     SPCM:  

NJP:  
- 20061129:	Article 111 (Drunken operation of a vehicle)
	Awarded:     Suspended:  

- 20070222:	Article 111 (Drunken operation of a vehicle)
	Awarded:    Suspended:  

CC:  
- 20061111:	Offense:  Class 1 misdemeanor, DUI
	Sentence:  Court appearance to be held on 20070303

- 20070203:	Offense:  Class 1 misdemeanor, DUI
	Sentence:  $250.00 fine, 90 days confinement (70 days suspended), driver’s license suspended for 1 year

Civil Arrest:  1

- 20070203:	Offense:  Class 6 felony, Eluding authorities
	Sentence:  Court appearance to be held on 20070315

Retention Warning Counseling:  1
	- 20070222 : Referenced in Commanding officer letter of 20070226

Administrative Corrections to the Applicant’s DD 214

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

  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20011111 TO 20051110”	

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/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:  

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.

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

Applicant’s Issues

1.  Never in trouble during first enlistment. 
2.  No pattern of misconduct.
3.  Never evaluated for Post Traumatic Stress Disorder (PTSD) which caused his drinking problems.  

Decision

Date:  20090423		Location:  Washington D.C.	Representation:  

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

Discussion

:  ()  .  The Applicant is seeking an upgrade based on the contentions he was never in trouble during his first enlistment and there was no basis for pattern of misconduct since his first Driving Under the Influence (DUI) charge was thrown out of court.  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 NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Applicant’s record of service was marred by one retention warning on 22 February 2007, two NJPs on 29 November 2006 and 22 February 2007, for violation of the Uniform Code of Military Justice (UCMJ):  Article 111 (Drunken operation of a vehicle), 2 specifications, and one civilian conviction for DUI on 03 February 2007.  These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not refer the Applicant for a court- martial but opted instead for an administrative discharge based on his established pattern of misconduct.  A pattern of misconduct is defined as two or more NJPs and a violation of a retention warning within one enlistment period.  The Board determined the summary of evidence as previously discussed, clearly supports a discharge based on the pattern of misconduct.  Accordingly, the contention there was no pattern of misconduct is deemed to be without merit and a change in the characterization and or narrative reason is not justified.   

In regard to the Applicant’s performance during his prior enlistment, pursuant to MILPERSMAN 1910-306, characterization of service will be determined solely on the period of the current enlistment or period of service to which the separation pertains and not prior enlistments.  The board considered the entries in the member’s record pertaining to this enlistment only in determining whether his characterization was equitable.  Taking into consideration the statement and evidence presented by the Applicant, the seriousness of offenses committed and overall record of service during this enlistment, the Board determined the awarded discharge was appropriate and an upgrade was not warranted.  

:  ()  .  The Applicant also contends he was never given any type of evaluation for PTSD and his drinking problems were a direct result of the PTSD.  The evidence of record as noted in the Commanding Officer’s letter of 26 February 2007 reflects after the Applicant’s first incident [referring to his DUI] he received a mandatory Drug and Alcohol Program Advisor screening and while awaiting rehabilitation treatment, he was arrested for an additional DUI and eluding authorities.  This evidence of record refutes the Applicant’s contention he was not evaluated for his drinking problem or offered treatment.  

There is no evidence in the record, nor was any provided by the Applicant, to support the contention PTSD caused him to abuse alcohol or was in any way associated with his misconduct.  The Applicant has not provided any documentation to support the contention he was experiencing symptoms of PTSD during his enlistment or after being discharged.  Furthermore, there is no evidence in the record or provided by the Applicant indicating he complained of symptoms of PTSD while on active duty or requested an evaluation and was denied medical assistance by the chain of command.  The Board presumes regularity in the conduct of 

governmental affairs in the absence of the Applicant’s medical records and other persuasive evidence to the contrary.  As such, in the Applicant’s case, the Board presumed that Applicant’s discharge was regular in all respects.  Therefore, relief is denied.  

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