ex-AEAN, USN

Current Discharge and Applicant’s Request

Application Received: 20090531
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19960125 - 19960520  	Active:	  19960521 – 20000520  HON

Period of Service Under Review:
Date of Enlistment:  20020510	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20020912	Highest Rank/Rate:  AE3
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  74
Evaluation Marks:	Performance:  NONE	Behavior:  1.0 (1)	OTA:  1.00

Awards and Decorations (per DD 214):	NUC GCM NDSM AFEM SSDR (2) NM

Periods of UA/CONF:  

NJP:  
- 20020710:  Article 112a (Drug use; wrongful use, possession, etc. of controlled substances, cocaine)
                     Awarded:     Suspended:  

SCM:    SPCM:    CC:    Retention Warning Counseling:  

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:  

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

Applicant’s Issues

1.  Employment opportunities.
2.  Discharge inequitable based on prior service.
3.  Post-service conduct.

Decision

Date:  20090409		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 .

Issue 2:  ()  .  The Applicant contends his discharge was inequitable because his prior naval service was honorable.  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.  The Applicant’s record of service was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug use; wrongful use, possession, etc. of controlled substances, cocaine).  The Board commends the Applicant for completing his first enlistment of four years with an “Honorable” characterization, however, each period of enlistment is an independent obligation for a specific period of time and a separate discharge characterization is determined for each enlistment.  It was noted the Applicant did not immediately reenlist upon reaching the end of his first enlistment; rather, he waited approximately two years before starting his second enlistment.  The evidence of record shows the Applicant used cocaine prior to the start of his second enlistment.  The NDRB advises the Applicant certain serious offenses warrant separation from the service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service.  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. The command did not pursue a punitive discharge but opted instead for an administrative discharge.  

The Applicant has requested an upgrade in his discharge characterization to “General (Under Honorable Conditions)”.  For the edification of the Applicant, a “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  The Board determined the Applicant’s use of cocaine reflects a significant departure from the conduct expected from a U. S. Sailor and the characterization of service was appropriate; an upgrade would be inappropriate.

Issue 3:  ()  .  The Applicant contends his post-service conduct warrants reconsideration in upgrading his characterization to “General (Under Honorable Conditions).”  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in 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 during Board reviews.  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 companies, or other financial institutions; attendance or completion of higher education (official transcripts); and documentation of alcohol non-dependency and 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant provided a copy of his completion of aviation maintenance technician training and stated he was working on a bachelor’s degree in electrical engineering technology.  While the Board applauds the Applicant's efforts to continue his education to better succeed as a civilian, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization.  To warrant an upgrade the Applicant’s post-service efforts needs 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 characterization of service received was an appropriate characterization considering the length of prior service and the UCMJ violation involved, and based on the limited post-service documentation provided an upgrade would be inappropriate.  Should the Applicant obtain additional evidence or post-service documentation he may wish to apply for a personal appearance.  There are veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  

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   

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 112a (Drug use).

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