Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND08-01149

ex-HTFN, USN

Current Discharge and Applicant’s Request

Application Received: 20080430
Characterization of Service Received: OTHER THAN HONORABLE
Narrative Reason for Discharge: BY REASON OF MISCONDUCT DUE TO DRUG ABUSE
Authority for Discharge: MILPERSMAN 1910-146 (DRUG ABUSE)

Applicant’s Request: Characterization change to: HONORABLE OR GENERAL (UNDER HONORABLE CONDITIONS)
                                  Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19940203 - 19940213  COG		Active:   NONE

Period of Service Under Review:
Date of Enlistment: 19940214	Period of Enlistment:  4 Years  24 MONTHS Extension	Date of Discharge:  20000316
Length of Service:  06  Yrs  01  Months  03  Days	Education Level:  11	Age at Enlistment:  23	AFQT:  74
Highest Rank/Rate:  HT3	Evaluation Marks:  Performance: 3.8 (2)	Behavior: 4.0 (2)	OTA:  3.90  4.0 EVALS 		 Performance: 4.0 (6)	Behavior: 3.0 (6)	OTA:  3.47  5.0 EVALS
Awards and Decorations (per DD 214):  GCM SWASM NAVY "E" (2) SSDR (3) NDSM

Periods of UA: 19940909 to 19941016, 36 days; 
	           19950804 to 19950806, 2 days.

NJPs:	3
19941126: Article 86 (Unauthorized absence), 19940909 to 19941016, (36 days, 18 hours and 40 minutes);
                  Article 87 (Missing movement), 2 specifications;
                  Article 107 (False official statement).
                  Awarded: FOP RESTR EPD.  Susp - NONE.

19950815: Article 86 (Unauthorized absence), from 19950804 to 19950806 (2 days).
                  Awarded: FOP.  Susp - NONE.

20000209: Article 112a (Wrongful use of cocaine).
                  Awarded: RIR RESTR EPD.  Susp - NONE.

SCMs:	NONE

SPCMs:	NONE

CC:	NONE

Retention Warnings:  1.
19950818: For misconduct as evidenced by your violations of the Uniform Code of Military Justice of unauthorized
                  absence; more specifically, poor impulse control, unreliability, immaturity, irresponsibility, and a complete
                  disregard for good order and discipline..

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
	Block 29, Dates of Time Lost During This Period, should read “94AUG04-940806; 94SEP09 TO 94OCT15”

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 and/or Medical Record:  ☒		Other Records:  ☐
Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
Additional Statements From Applicant:  ☐		From Representation:  ☐		From Member of Congress:  ☐
Other Documentation (Describe): ☐

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 
Article 1910-146, Separation by Reason of Misconduct - Drug Abuse.

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 86, 87, 107, and 112a.

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

Applicant’s Issues

1.  Would like to pursue G.I. Bill entitlements.
2.  Isolated incident.
3.  Personal problems caused the misconduct.

Decision

Date:  20080911	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (DRUG ABUSE).

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum,  specifically the paragraph concerning Employment/Educational Opportunities, regarding this Issue.

Issue 2: (Equity)  RELIEF NOT WARRANTED.  The Applicant stated his discharge was based on one isolated incident.  For the edification of the Applicant, despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  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.  Despite the Applicant’s claims the last incident, which triggered the discharge process, was a one time incident and his pervious years on active duty were error free, the record shows his service was marred by one retention warning and  three non-judicial punishments for violations of the Uniform Code of Military Justice, Articles  86, 87, 107 and 112a.  These violations are punishable by a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  Illegal drug use cannot be tolerated by any member of the United States Navy, regardless of grade or time in service.  An “Under Other Than Honorable Conditions” discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  Considering the nature of his last offense and his previous disciplinary record, the Board determined an upgrade would be inappropriate.

Issue 3: (Equity)  RELIEF NOT WARRANTED.  The Applicant claims the deaths of his father and grandmother upset him greatly and caused the misconduct.  He does not offer any medical documentation, such as mental health assessments, to support his claim the deaths of these relatives impacted his decisions nor does he provide death certificate to validate his claim of the deaths.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions based on the deaths of family members.  The Board determined the statement concerning his family member’s deaths causing his misconduct was not supported by strong enough evidence, to include military medical evidence showing the Applicant was so distraught he was not responsible for his actions, to mitigate the misconduct and an upgrade would be inappropriate. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service  Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

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 or is referred to a court martial 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 other medical related reasons.  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 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 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water