ex-AMEAA, USN

Current Discharge and Applicant’s Request

Application Received: 20101014
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)	20060726 - 20070102  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070103	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090512	Highest Rank/Rate:  AMEAA
Length of Service:   Years    Months  10 Days
Education Level:  	AFQT:  75
Evaluation Marks:	Performance:  NFIR 3.0 (3)	Behavior:  2.0 (4)	OTA:  2.90
Awards and Decorations (per DD 214):	Pistol EX NDSM GWOTSM 

Periods of UA/CONF:  

NJP:  2

- 20081126:	Article 86 (Absence without leave, 20081122-20081123)
	Article 92 (Failure to obey order or regulation, 20081121)
	Article 107 (False official statement, 20081124)
	Article 112 (Drunk on duty, 20081121 and 20081122)
	Awarded: FOP   Suspended:  

- 20090512:	Article 86 (Absence without leave - UA, 20090511, apprehended)
	Article 92 (Failure to obey order or regulation, 3 specifications)
		Specifications 1 and 2: Underage drinking, o/o 20090510 and 20090511
		Specification 3: Wrongfully having a personal relationship with another service member, 20090510
	Article 108 (Military property of the United States - loss, damage, destruction, or wrongful disposition, 
		willfully destroy by kicking military property of the United States, sum of about $80.00, 20090510)
	Article 112 (Drunk on duty, 20090510)
	Article 134 (Disorderly conduct, drunkenness, 20090510 and 20090511)
	Awarded: RIR (to E-2) FOP RESTR   Suspended:  None

SCM:  NONE	SPCM:  NONE	CC:  NONE 

Retention Warning Counseling:  2

- 20070320: 	For violation of UCMJ Article 92, Failure to obey order or regulation.
- 20081126:	For CO’s NJP (26 Nov 08) for violations of UCMJ Articles 86, 92, 107, and 112 (absence without leave, failure to obey a lawful order or regulation, false official statement, and drunk on duty).

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “PISTOL MARKSMAN, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL”
	  “GENERAL (UNDER HONORABLE CONDITIONS)”

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:		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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 23, 15 May 2008 until 22 November 2009, Article 1910-152, SEPARATION BY REASON OF ALCOHOL REHABILITATION FAILURE.

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 seeks a discharge upgrade to re-enlist in the U.S. Armed Forces.
2.	Applicant contends the death of his brother contributed to his alcohol abuse and subsequent discharge from service.

Decision

Date:  20120112		Location:  Washington D.C.	Representation:  NONE

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 one decisional issue for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications: 22-23 Nov 2008, UA from duty section; and 11 May 2009, UA terminated by his apprehension), Article 92 (Failure to obey order or regulation, 5 specifications: underage drinking, 21 Nov and 22 Nov 2008; underage drinking, 10 May and 11 May 2009; wrongful relationship with another service member in unit, 10 May 2009), Article 107 (False official statement, 24 Nov 2008, made false statement with intent to deceive, that he was in his barracks room all night when in actuality he departed barracks to attend a party), Article 108 (Military property of the United States - loss, damage, destruction, or wrongful disposition, willfully destroy by kicking military property of the United States, sum of about $80.00, 11 May 2009), Article 112 (Drunk on duty, 3 specifications: while on duty section 4, 21 Nov and 22 Nov 2008; while on duty section 3, 10 May 2009), and Article 134 (Disorderly conduct, drunkenness, 2 specifications: 20090510 and 20090511, NAS Oceana VA).  Although the Applicant was provided and successfully completed treatment for alcohol abuse on 23 Apr 2009 (IMPACT, Level 0.5), he was found drunk on duty twice (subsequent to treatment), which resulted in his determination as an alcohol rehabilitation failure.  When notified of administrative separation processing using the notification procedure on 12 May 2009, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

:  (Nondecisional)  The Applicant seeks a discharge upgrade to re-enlist in the U.S. Armed Forces.  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 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.

:  (Decisional) ()  .  The Applicant contends the death of his brother contributed to his alcohol abuse and subsequent discharge from service.  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; violations of UCMJ Articles 92, 107, 112, and 134 meet this standard.  The Applicant signed the USN Illicit Behavior/Drug and Alcohol Abuse Policy on 25 Jul 2006.  He was fully aware of the low tolerance for alcohol abuse, and he acknowledged the consequences.  Additionally, he signed his understanding and acknowledgment of the state of Virginia laws regarding underage drinking on 30 May 2008.  While he may feel the tragic death of his brother during his Christmas leave period was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful (from Mar 2007 thru May 2009) 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.  The Board conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to indicate, that he attempted to use the 

numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB recognizes that serving in the U.S. Navy is challenging, especially when unexpected dramatic events occur in one’s personal life.  However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of personal circumstances or the environment or mission in which assigned.

A General (Under Honorable Conditions) discharge is warranted when a Sailor’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 Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant repeatedly failed to meet the requirements of conduct expected of all Sailors (Mar 2007 thru May 2009), especially considering his grade and length of service, and falls short of what is required for an upgrade to Honorable.  After careful analysis and consideration of all the available evidence, the Board determined 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