ex-FC2, USN

Current Discharge and Applicant’s Request

Application Received: 20100422
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)	19991026 - 19991103  	Active:	  2000517 - 20021120
		20000426 - 20000516  COG

Period of Service Under Review:
Date of Current Enlistment:  20021121	Age at Enlistment:  23
Period of Enlistment:   Years   Extension
Date of Discharge:  20080731	Highest Rank/Rate:  FC2
Length of Service:  5 Years   8  Months   10 Days
Education Level:  12	AFQT:  67
Evaluation Marks:	Performance:  4.0 (3)	Behavior:  3.0 (3)	OTA:  3.43

Awards and Decorations (per DD 214):	 (2)   (3) ESWS

Periods of UA/CONF:  

NJP:  2

- 20041007:	Article 112 (Drunk on duty), 20040909 
	Awarded:  (to E-3) Suspended:   (suspend 6 months)

- 20080213:	Article 92 (Failure to obey order or regulation, failed to report DUI traffic accident), 20071219
	Awarded:    Suspended:    (suspend 6 months)

SCM:  NONE		SPCM:  

CIV ARREST:  

- 20031016:	Charge:  DUI.  Case is pending adjudication by civilian authorities [Extracted from Commanding Officer’s letter dated 20080708.]
CC:  

- 20031015:	Offense:  Driving Under the Influence-DUI
	Sentence: Suspended driver’s license for 12 months, fine $464.00, ASAP fee of $400.0, and completion of state or military Alcohol Rehab Program  

Retention Warning Counseling:  2

- 20030818:    For an alcohol-related incident.
- 20041008:	For being drunk on duty.

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 20 May 2008 until 9 November 2009, 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.	Applicant contends his discharge was inequitable due to an isolated incident of misconduct.
2.	Applicant contends his discharge was inequitable, because a pre-service civil conviction was used during his discharge proceedings.

Decision

Date:  20110804		Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) retention warnings for an alcohol-related incident (18 Aug 2003) and being drunk on duty (8 Oct 2004) and   for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, failed to report 19 Dec 2007 off-base DUI traffic accident to his command) and Article 112 (Drunk on duty, 9 Sep 2004, after reporting to work 10 minutes late, blowing a .10 BAC on breathalyzer test).  The Applicant also had a civilian arrest for DUI (16 Oct 2003) and a civilian conviction for DUI (15 Oct 2003).  The Applicant also had two pre-service waivers for three chart B offenses (disorderly conduct-intoxication, minor in possession of alcohol, and parole violation) and using marijuana twenty times and LSD one time prior to entering the Navy.  Based on the offenses committed by the Applicant,  command administratively processed  for separation.  When notified of administrative separation processing using the  procedure on 18 Mar 2008, the Applicant waived his right to consult with a qualified counsel, but elected his rights to submit a written statement and request an administrative separation board.  On 25 Jun 2008, the Administrative Separation Board convened and submitted the following findings to the commanding officer: (by 3-0 vote) the Applicant committed misconduct under the applicable sections of the Naval Military Personnel Manual(MILPERSMAN) for Pattern of Misconduct, Commission of a Serious Offense, and Civil Conviction; (by 3-0 vote) the Applicant was determined to be an Alcohol Treatment Failure; (by 3-0 vote) the Applicant should be separated from the service; (by 3-0 vote) the Applicant should receive an Under Other Than Honorable Conditions character of service.  On 8 Jul 2008, the Applicant’s commanding officer submitted his recommendation to the Commander, Navy Personnel Command that the Applicant be discharged from the Navy with an Under Other Than Honorable Conditions discharge.  On 16 Jul 2008, the Commander, Navy Personnel Command directed the Applicant be discharged as requested due to a Pattern of Misconduct.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable due to an isolated incident of misconduct.  Despite a service member’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain good order and discipline; violation of Articles 92 and 112 meets this standard.  The Applicant signed the USN Drug and Alcohol Screening Form on 25 Oct 1999.  He was fully aware there is a zero-tolerance policy for alcohol abuse, and he acknowledged the consequences.  Furthermore, the record reveals that prior to the misconduct committed during the current enlistment, the Applicant had an established history of alcohol abuse and resultant misconduct that started before he enlisted in the Navy.  While he may feel that life stressors and immaturity were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service.  The 

Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable, because a pre-service civil conviction was used during his discharge proceedings.  Per the MILPERSMAN, commanding officers may consider pre-service and prior enlistment matters when determining whether a service member should be retained or separated from the service.  However, those matters cannot be used or considered when determining the member’s characterization of service; only in-service performance and conduct during the current enlistment may be used when determining the character of discharge.  After careful review of all the facts and circumstance surrounding the Applicant’s performance and conduct during the current enlistment, the Board determined that the discharge and character of service directed by the Commander, Navy Personnel Command met the standards of propriety and equity and were in accordance with the orders and directives in effect at the time of his separation.  Accordingly, the Board found this issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries,and the administrative separation process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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