ex-OSSN, USN
ND07-00692

Current Discharge and Applicant’s Request

Application Received:  20070426 	Characterization Received:  
Narrative Reason:  MISCONDUCT         Authority:  MILPERSMAN 3630600; Commission of a serious offense or civilian offense

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

Applicant’s Issues:

1.  The Applicant claims he was told he would be rehabilitated and not discharged for his misconduct.
2.  Post Service - Equity

Decision

Date:  20080424     Location:  Washington D.C Representation:  CIVILIAN COUNSEL

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

Issues 1 : ().  The Applicant claims he was told he would be rehabilitated and not discharged for his misconduct.  There is credible evidence in the record the Applicant used illegal drugs while in military service.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Separation under these conditions usually results in the characterization of service as under other than honorable conditions.  The Board found no indication in the record the Applicant was improperly denied treatment for his drug use or was treated in a manner inconsistent with discipline standards of the Naval Service.  While the Applicant may feel he was improperly discharged the evidence of record does not support this claim.  No evidence was provided by the Applicant or found on record demonstrating the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Command’s actions to process a separation were within established procedures for maintaining good order and Naval discipline and were in accordance with DOD policy. 

Issue 2: ().  The Applicant is requesting an upgrade based on his post service accomplishments.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined the discharge was appropriate and the evidence of post-service conduct was not found to mitigate the conduct which precipitated the discharge.  The preponderance of post-service character letters provided by the Applicant centered on his volunteer work teaching martial arts.  Additionally,  the Applicant notified the NDRB members during his personal appearance of a post-service conviction on an assault charge resulting from an altercation he had which ended with the victim receiving several broken bones.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900518 - 19900814  		Active:   
Period of Service Under Review:
Date of Enlstment: 19900815		Years Contracted:  ; Extension:  	Date of Discharge:  19931109
Length of Service:  03  Yrs  02  Mths  25  Dys        Lost Time: NONE      UA:          Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  62	Highest Rank/Rate:  OS3
Evaluation marks (# of occasions):	Performance:  3.1(4)	Behavior:  3.1(4)	 OTA:  3.75 
Awards and Decorations (per DD 214):  NDSM

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19910412:	NJP -- Viol UCMJ Art. 111 - Operate a vehicle while drunk.
	Awarded - Restr for (45 days).  [Extracted from Commanding Officer’s message dated 19931022.]

19931013:	NJP -- Viol UCMJ Art. 112a - Wrongfully use of amphetamines.
	Awarded - FOP ($500.00) for (2 months); RIR (); Restr for (45 days); Extra duties (45 days).

19931014:	Drug and Alcohol Abuse Report:  Amphetamines abuse, 4 to 7 times per week, ashore off duty.  Self referral/disclosure 19931014.  Physician found applicant dependent and recommended separation via VA hospital.  Commanding Officer recommended separate via VA hospital.  Commanding Officer comments:  Average performer with a steadily decreasing level of performance throughout the last two evaluation periods.  No potential for future service.

Discharge Process

Date Notified:					19931021
Reason for Discharge:	 - 
	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19931021
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (19931022)
Separation Authority (date):	BUPERS (19931029)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19931109

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe) 

Various letters from friends and church members attesting to his character. 

NDRB Documentary Review Conducted (date):	19960812
NDRB Documentary Review Docket Number:	ND96-00762
NDRB Documentary Review Findings:		No change warranted.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, Article: 3630600, effective 28 June 1993 until 25 January 2004, Commission of a serious offense or Civilian 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 and 112a.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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