ex-EN2, USN

Current Discharge and Applicant’s Request

Application Received: 20151204
Characterization of Service Received:   
Narrative Reason for Discharge:   
Separation Code:  JPD
Reentry Code:  
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20081016 - 20090112  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20090113	Age at Enlistment:  
Period of Enlistment:   Years   Extension 
Date of Discharge:  20130828	Highest Rank/Rate:  EN2
Length of Service:   Year(s)     Month(s)   16 Day(s)
Education Level:  	AFQT:  92
Evaluation Marks:	Performance:  3.0 (7)	Behavior:  3.14 (7)	OTA:  3.16

Awards and Decorations (per DD 214):	  

NJP:  

SCM:  

SPCM:  

CIVIL ARREST:  

- 20130601:	Charges:  Virginia Code 18.2-57.2, Assault on Family Member of Household Member.  Held in civil confinement from 20130601 until 20130606.  
                       [Extracted from REPORT OF ADMINISTRATIVE SEPARATION letter dated 20131010]
 
CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “01JUN13 TO 06JUN13, 5 DAYS”

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:	

Types of Witnesses Who Testified

	Expert:		Character:	

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 29, 23 November 2009 until Present, Article 1910-152, SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION FAILURE OR MULTIPLE DRIVING UNDER THE INFLUENCE (DUI) / DRIVING WHILE INTOXICATED (DWIs).

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant seeks an upgrade in order to qualify for VA education benefits.
2.	The Applicant contends that his in-service conduct was honorable.
3.	The Applicant contends that his narrative reason for separation breaks patient confidentiality by revealing his participation in a rehabilitation program, especially considering he sought this help out on his own.

Decision

Date:  20160421		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .
By a vote of  the Separation Code shall  JPD.
By a vote of  the Reentry Code shall  .

Discussion

The Naval Discharge Review Board (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 did complete 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 no 6105 counseling warnings and no misconduct resulting in nonjudicial punishment or court-martial.  However, the Applicant’s record shows that on 1 June 2003 he was arrested by civilian law enforcement for violation of Virginia Code 18.2-57.2, Assault on Family or Household Member.  The record further shows that he was held in civilian confinement from 1 to 6 June 2003 before being released from civil law enforcement custody.  The record next shows the Applicant tested positive for cocaine while attending level three substance abuse treatment, thereby causing his treatment to be considered a failure.  The Applicant did not have a pre-service drug waiver prior to entering the Navy.  Based on the offense(s) committed by the Applicant,  command administratively processed  for separation.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

:  (Nondecisional) The Applicant seeks an upgrade in order to qualify for VA education benefits.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  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.

:  (Decisional) ()  .  The Applicant contends that his in-service conduct was honorable.  The Applicant’s service record documents a civilian arrest resulting in six days of incarceration due to domestic assault and a positive urinalysis for cocaine while attending a subsequent alcohol rehabilitation program.  These two offenses translate to violations of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc., of controlled substances) and Article 128 (Assault); both of which could have resulted in a punitive discharge if they had been brought forth as charges at a special or general court-martial.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends that his narrative reason for separation breaks patient confidentiality by revealing his participation in a rehabilitation program, especially considering he sought this help out on his own.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The NDRB conducted an exhaustive review of the facts and circumstances surrounding the Applicant’s discharge and did not find the Applicant’s DD-214 Form violated patient confidentiality.  The evidence of record does not support the Applicant’s claim that he voluntarily entered into substance abuse treatment and therefore should not have been penalized for failing to complete the program.  The NDRB noted the Applicant’s Command could have used other narrative reasons for separation such as MISCONDUCT (SERIOUS OFFENSE) due to the Applicant’s civilian arrest and incarceration for domestic assault charges or MISCONDUCT (DRUG ABUSE) due to the Applicant testing positive for cocaine during his alcohol rehabilitation treatment.  The NDRB found ALCOHOL REHABILITATION FAILURE was an appropriate and proper reason for separation in this case.  Relief denied. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL), the narrative reason for separation shall remain  with a corresponding separation code of JPD, and the reentry code 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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