ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20080819
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge: MILPERSMAN 3630620

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19950331 - 19950522  		Active:  

Period of Service Under Review:
Date of Enlistment: 19950523	Period of Enlistment:  Years   Extension	Date of Discharge: 19951222
Length of Service:  Years     Months   00 Days	Education Level: 	Age at Enlistment: 	AFQT: 41
Highest Rank/Rate: 	AR	Evaluation Marks: Performance:	NFIR	Behavior: NFIR	OTA: NFIR
Awards and Decorations (per DD 214):  NDSM

NJP:      SCM:      SPCM:      CC:  

Retention Warnings:  
- 19950818:  For failure to pay traffic citation for illegal parking, 19951001, FT Lauderdale, FL.  Fine paid 19950818

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

              Other Documentation (Describe): 

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 22 July 1994 until 
2 October 1996, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 112A (Use of illegal substance). 

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

Applicant’s Issues
1.  Employment in law enforcement.
2.  Isolated incident
3.  Post service conduct.

Decision

Date:  20081204		Location:  Washington D.C.	Representation:  

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

Discussion

:   either  which the Board cannot form the basis of relief for the Applicant, or  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 , regarding .

:  ()  .  The Applicant claims his misconduct occurred because his fiancée threatened to leave him if he did not get out of the Navy.  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.  There are conflicts between what is found in his official record and what he writes in his Application for Review of Discharge (DD 293) statements.  In his Request Mast dated 5 October 1995, the Applicant told his Commanding Officer he enlisted in the Navy only because his fiancée insisted he do so; then she left him while he was in boot camp.  He further states he was erroneously sent to NAS Jacksonville vice VS-24.  He did not want to serve there and tried to be released from his contract.  Records show the Applicant’s Commanding Officer informed him he could only be released from his military obligation due to misconduct.  He advised the Applicant this course of action was not advantageous to either the Navy or himself.   

The Applicant claims in his petition for review statement he never used drugs and was not guilty of any misconduct.  A review of his military record reveals a signed voluntary statement made by the Applicant on 1 November 1995 in which he admitted to using marijuana during the first week of October 1995 to calm his nerves.  He was hospitalized from 23-25 October in the Naval Hospital Jacksonville Psychiatric Ward where he was determined to be alcohol dependent with a Personality Disorder marked by extreme immaturity.  The Applicant admitted to having no desire to remain in the service and thought of hurting others or himself if he were not discharged.  As a result of his self-admission for marijuana use, the Applicant was processed for an administrative separation based on Misconduct by Reason of Drug Use, which is a violation of the Uniform Code of Military Justice (UCMJ):  Article 112a (Drug use).  

The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  Illegal drug use cannot be tolerated by any member of the U. S. Navy.  In accordance with U. S. Navy policy, all Sailors (regardless of time in service or pay grade) are processed for administrative separation by reason of misconduct due to drug use, regardless if it is the Sailor’s first offense.  In view of the Applicant’s willful failure to uphold the standards of conduct of the U. S. Navy, the Board determined the awarded discharge characterization was appropriate; an upgrade would be inappropriate.

: ()  .  The Applicant states he has matured and wants to finish what he started.  He made a vow of poverty for one year and volunteered to work with Americorps.  Additionally, he is now the director of a non-profit organization and is known by friends and family as “the unpaid social worker”.  The NDRB is authorized to consider 

post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  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.  The key word here is “Outstanding”.  The Board is looking for actions that go beyond simply daily living. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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 company’s, or other financial institutions; 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 conduct mitigates the reason for the characterization of discharge. 

Although the Applicant states he has matured and changed, he did not provide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request for an upgrade.  The Applicant's efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The Board determined the discharge characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization and without having the necessary post service documentation to review, an upgrade would be inappropriate.

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

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 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 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