DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2654-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. §1552 (b) USECDEF Memo of 25 Jul 18 “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 with attachments 1. Pursuant to reference (a), Petitioner, a former enlisted member of the Navy, filed the enclosure with a request to upgrade his characterization of service. 2. The Board, consisting of , reviewed Petitioner’s petition containing certain allegations of error and injustice on 30 April 2020, and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of his naval service records, medical records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although the enclosure was not filed in a timely manner, it is in the interests of justice to review the application on its merits. c. Petitioner enlisted in the Navy and began a period of active service on 2 May 2006. On 7 February 2011, Petitioner’s command issued him a “Page 13” counseling warning (Page 13) documenting his civilian DUI conviction in Court on 12 July 2010. The Page 13 outlined and provided him with the customary warnings regarding the ramifications of future misconduct. However, on 2 March 2011, the Petitioner went to non-judicial punishment (NJP) for the failure to obey an alcohol-related lawful order to refrain from drinking alcohol while on deployment. d. In March 2011, the Petitioner was notified that he was being processed for an administrative discharge by reason of alcohol rehabilitation failure. The Petitioner expressly waived his rights to present his case to an administrative separation board. On 19 March 2011 Petitioner was discharged from the Navy for alcohol rehabilitation failure with a “general (under honorable conditions)” (GEN) characterization of service and assigned an RE-4 reentry code. e. The Petitioner contended that the current record was unjust because at the time of his discharge, he stated he was assured that having a GEN discharge would not jeopardize any entitlement to educational benefits. However, the Board observed that on 8 May 2000 the Petitioner completed his Montgomery GI Bill Act of 1984 (MGIB) basic enrollment form during his initial recruit training. The Board noted that paragraph 3.(5) expressly states: “I must receive an HONORABLE discharge for service establishing entitlement to the MGIB. This DOES NOT include “under honorable conditions”.” f. The Board also noted that while the Petitioner’s misconduct involved alcohol-related incidents, the record did not contain any command referrals, medical screenings, or attendance in any alcohol rehabilitation treatment programs. CONCLUSION: Upon review and liberal consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants partial relief. Additionally, the Board reviewed his application under the guidance provided in reference (b). Specifically, the Board considered whether his application was the type that was intended to be covered by this policy. The purpose and intent of the Under Secretary of Defense Memorandum (reference (b)), is to simplify the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The memorandum noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The memorandum sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including arrests, criminal charges, or any convictions. In keeping with the letter and spirit of the recent policy guidance, the Board concluded that in the absence of information indicating Petitioner’s failure to complete any prescribed treatment, that no useful purpose is served by continuing to characterize the Petitioner’s service as having been for an alcohol rehabilitation failure, and a change in the narrative reason for separation under these circumstances is appropriate at this time. However, the Board also noted that the Petitioner’s misconduct independently met the criterion to be processed and discharged for: (a) misconduct due to the commission of a serious offense, and (b) misconduct due to a pattern of misconduct, and declined to change the characterization of service. In light of reference (b), the Board concluded, after reviewing the record holistically and given the totality of the circumstances, that the Petitioner’s service merits a GEN characterization of service, and that the reentry code should remain “RE-4.” The Board also carefully considered Petitioner’s contention that he was advised having a GEN discharge would not jeopardize his entitlement to educational benefits. However, the Board did not find his contention sufficient to grant any relief. The Board concluded that the express written terms of Petitioner’s MGIB enrollment form were unambiguous and could not be contradicted or otherwise invalidated by any purported command assurances to the contrary. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the narrative reason for separation should be changed to “Secretarial Authority.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on or about 12 February 2019. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 5/17/2020