ex-HM3, USN

Current Discharge and Applicant’s Request

Application Received: 20110808
Characterization of Service Received:  
Narrative Reason for Discharge:   
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	END OF ACTIVE OBLIGATED SERVICE

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20040310 - 20040928  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040929	Age at Enlistment:  
Period of Enlistment:   Years  34 MONTHS Extension
Date of Discharge:  20101005	Highest Rank/Rate:  HM3
Length of Service:   Years     Months   07 Days
Education Level:  	AFQT:  62
Evaluation Marks:	Performance:  3.6 (7)	Behavior:  2.9 (7)	OTA:  3.17

Awards and Decorations (per DD 214):	Pistol SS GWOTSM GCM JSAM NDSM OSR 

Periods of UA/CONF:  

NJP:  1
- 20080213:	Article 86 (Absence without leave, UA)
	Article 111 (Drunken or reckless operation of a vehicle, 2 specifications)
	Awarded: RIR (to E-3) FOP 2 months RESTR	Suspended:  FOP 1 month RESTR (suspend 6 months)

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE 

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 29, effective 10 November 2009 until 17 August 2011, 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 111.

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

Applicant’s Issues

1.	The Applicant contends he was not afforded his right to request an administrative board as he had more than six years of reserve and active service.
2.	The Applicant contends his command failed to properly administer post-deployment screening.
3.	The Applicant contends his character of service and narrative reason for separation inaccurately describe his service. 
4.	The Applicant believes his post-service conduct is worthy of consideration for a discharge upgrade.

Decision

Date:  20120913		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 Board conducted a thorough review of the Applicant’s service records to determine whether his discharge met the pertinent standards for propriety and equity.  The Applicant’s record of service included one non-judicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, UA) and Article 111 (Drunken or reckless operation of a vehicle, 2 specifications).  The records also indicated the Applicant received substance abuse screening and evaluations in August 2007 and January 2008, and subsequent completion of outpatient substance abuse treatment (for alcohol) in March 2008.  Documentation within the record reflects that the Applicant was suspected of reporting for morning duties at the U.S. Naval Hospital Pharmacy, Rota, Spain (0730 on 13 August 2010) while under the influence of alcohol.  At 0938 the same morning, the Applicant’s Commanding Officer directed that he be medically evaluated for fitness for duty.  During the subsequent medical exam, the physician noted the Applicant’s face was flushed and his eyes bloodshot, exhibiting horizontal nystagmus.  Breathalyzer results taken at approximately 1100 on 13 August indicated .09% BAC.  On 26 August 2010, when advised of pending NJP (Captain’s Mast) for violation of UCMJ Article 112 (Drunk on duty), the Applicant exercised his right to refuse the proposed NJP.  Since the Applicant had a subsequent alcohol-related incident after completing alcohol rehabilitation treatment, he was determined to be an alcohol rehabilitation treatment program failure, which requires mandatory administrative separation processing per the Naval Military Personnel Manual (MILPERSMAN).  In addition to alcohol rehabilitation program treatment failure processing, and based on the repeated and serious nature of the offenses committed by the Applicant during his enlistment (two violations of UCMJ Article 111 and one violation of UCMJ Article 112), his command processed him for separation on the basis of commission of a serious offense.  Once the Applicant refused NJP for violation of UCMJ Article 112, his command could have referred him for trial by court-martial, however, the Applicant’s Commanding Officer opted instead to process him for administrative separation from the Navy.  When notified of administrative separation processing for Misconduct (Commission of a Serious Offense) and Alcohol Rehabilitation Failure using the notification procedure on 27 August 2010, the Applicant exercised his rights to consult with a qualified counsel, submit a written statement, request an administrative separation board, and a General Court-Martial Convening Authority review.  However, due to the Applicant’s 27 August 2010 date of notification of administrative separation processing, his cumulative time in-service was less than six years and therefore, he did not rate an administrative separation board hearing.  In the Applicant’s final Evaluation Report, dated 16 June - 10 October 2010, the Reporting Senior stated, “Evaluation being submitted due to member’s administrative separation for Commission of a Serious Offense and Alcohol Rehabilitation Failure.  Member’s Naval Enlisted Classification of 8482, Pharmacy Tech, was revoked on 20 September 2010 for loss of confidence.”  The Applicant was administratively separated from the Navy on 5 October 2010 with a General (Under Honorable Conditions) discharge due to Misconduct (Serious Offense).

:  (Decisional) ()  .  The Applicant contends his discharge was improper, because he was not afforded his right to request an administrative separation board.  The Applicant had 5 years, 10 months, and 30 days of continuous service when he received his command’s 27 August 2010 administrative separation processing notification.  Because his time in service was less than six years and the fact that he was not recommended for an Under Other Than Honorable Conditions character of service, the Applicant was not entitled to an administrative separation board per the requirements set forth in the MILPERSMAN.  In his letter to the NDRB, the Applicant contends that if his time in the Delayed Entry Program (DEP) was counted, then he would have had the requisite six years of service that would have made him eligible to request an administrative separation board.

Per Title 10 U.S.C. Section 10153, Standby Reserve: Status of Members, “While in an inactive status, a Reserve is not eligible for pay or promotion and (as provided in section 12734(a) of this title) does not accrue credit for years of service under chapter 1223 of this title.  Further, OPNAVINST 1000.26A, states, “Discharge from the DEP/DET.  Individuals discharged from the DEP/DET will not be credited for service in fulfillment of the MSO incurred, and any future enlistment or appointment of such persons shall be treated as an original entry into military service.”  Moreover, the Department of Defense Financial Management Regulation (DODFMR), Volume 7A, Chapter 1, states, “A period of enlistment in a Reserve Component under 10 U.S.C. 12103(b) or (d), including inactive service under a DEP, is creditable service only if the member performs inactive duty training before beginning active duty or an initial period of active duty for training….  Service performed as an enlisted member in a Reserve Component under 10 U.S.C. 513, other than a period of active duty, is not creditable service.”  Lastly, the Armed Forces Enlistment Document (DD Form 4/1) contains the following statement: “I understand that I will be ordered to active duty as a Reservist unless I report to the place shown in item 4 by (listed date) for enlistment in the Regular component of the United States (Army, Air Force, Navy, Marine Corps) for not less than (years) and (weeks).  My enlistment in the DEP is in a nonpay status.  I understand that my period in the DEP is not creditable for pay purposes upon entry into a pay status.  However, I also understand that this time is counted toward fulfillment of my military service obligation or commitment.  I must maintain my current qualifications and keep my recruiter informed of any changes in my physical or dependency status, moral qualifications, and mailing address.”

Therefore, although inactive reserve time in the Delayed Entry Program may be used to fulfill a portion of the standard eight-year military enlistment contract that further defines the specific military service obligation (i.e., 4 years active duty plus 4 years inactive reserve), the NDRB determined that the inactive “delayed” time in the DEP is not creditable for other purposes to include accumulation of creditable service for retirement eligibility and when determining eligibility (based on six or more years of service) for the right to request an administrative separation board hearing when notified of processing for administrative separation.  Accordingly, after careful review and consideration of the Applicant’s arguments, referenced MILPERSMAN articles, and DoD instructions, the NDRB determined the Applicant’s issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his command failed to properly administer post-deployment screening.  Per the applicable regulations, a medical evaluation is always required for service members separating from service.  In addition, a Post-Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) screening is required to determine whether additional evaluation is required to assess whether PTSD or TBI constitute matters in extenuation that relate to the basis for administrative separation if: a) the characterization of service is other than honorable; b) the member was deployed overseas to a contingency operation during the previous 24 months; c) the member is diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing PTSD or TBI, or reasonably alleges the influence of PTSD or TBI based on deployed service to a contingency operation during the previous 24 months; and d) is not being separated under court-martial or other proceedings.  The Applicant received a separation physical exam on 14 September 2010.  The DD Form 2807 (Report of Medical History and Examination) did not contain any findings or issues related to the Applicant’s mental health.  Additionally, the Applicant did not report any issues or concerns regarding his mental health to the examining physician.  The physician’s last entry contained the remark: “No issues requiring further evaluation.”  After exhaustive review of all the available records, and with no evidence provided by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB found the Applicant’s issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his character of service and narrative reason for separation inaccurately describe his service.  The Applicant’s record of service includes an unauthorized absence (UCMJ Article 86), drunk on duty (UCMJ Article 112), and two DUI incidents (UCMJ Article 111).  Violations of UCMJ Article 111 and Article 112 constitute a serious offense per Appendix 12 of the Manual for Courts-Martial and are punishable by up to six to nine months confinement and a Bad Conduct Discharge if awarded at trial by Special Court-Martial.  Per the MILPERSMAN, when a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under 

Honorable conditions.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record.  After exhaustive review and thorough consideration of all the available evidence, to include documentary evidence submitted by the Applicant, the NDRB determined that the Applicant’s administrative separation from the Naval Service was proper and equitable per the applicable orders and directives in effect at the time of his separation.  Relief denied.

4:  (Decisional) ()  .  The Applicant believes his post-service conduct is worthy of consideration for a discharge upgrade.  The NDRB considers 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.  The Applicant provided a personal statement, financial documentation, education documents, employment verification, letters of reference, criminal background check, character references, and additional service records in support of his request.  Although his efforts to improve his life are noteworthy and commendable, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  After consideration of the Applicant’s record of service and the documentary evidence submitted on his behalf, the NDRB determined the Applicant’s discharge was equitable and shall remain General (Under Honorable Conditions).  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  and medical record entries, the administrative separation process, and post-service documentation submitted by the Applicant, 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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