ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20090612
Characterization of Service Received:    
Narrative Reason for Discharge:    
Authority for Discharge:   MILPERSMAN 3630620 [MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19930630 - 19940403  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19940404	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19950614	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   10 Day(s)
Education Level:  	AFQT:  82
Evaluation Marks:	Performance:  3.2 (2)	Behavior:  3.3 (2)	OTA:  3.30

Awards and Decorations (per DD 214):	

Periods of UA/CONF:  

NJP:  

- 19950410:	Article  (Wrongful use of cocaine)  
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	19960819
NDRB Documentary Review Docket Number:	ND96-00882
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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/To Representation:		From/To Congress member:	
                    Other Documentation:	
Applicant Testified:  
Applicant Available for Questions:  
Witnesses:  Yes
Observers:  Yes

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.

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

Applicant’s Issues

1.	Post-service conduct.

Decision
Date:  20100512		Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included one non-judicial punishment (NJP) for  of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use of a controlled substance -cocaine).  The Applicant also had a pre-service drug waiver for using illegal substances prior to entering the Navy.  Based on the drug offense committed, processing for administrative separation is mandatory.  When notified for Administrative Separation Processing, the Applicant waived his rights to consult with qualified counsel, submit a written statement, and request an Administrative Board. 

:  (Decisional) ()  .   The Applicant appeared before the NDRB accompanied by his father requesting an upgrade to General (Under Honorable Conditions) based on his post-service conduct.  The Applicant was a credible witness who admitted that he made a “huge mistake” and presented substantial documentary evidence which included: character references from former employer/friend, city mayor, college transcripts and diplomas, results of engineering examination of April 2004, certificates of scholastic achievements, and license to practice as engineer in New Jersey.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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.  The Board noted since being discharged the Applicant has demonstrated a strong commitment to education and excellence.  After a careful review of the Applicant's post service documentation, in addition to his official service record and supporting documentation, the Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to  General (Under Honorable Conditions).  The Applicant’s career progression, academic achievements, and strong references demonstrated that he possessed character and drive that was not evident during his tour of active duty.  His post-service actions demonstrate that his misconduct was most likely isolated, and not reflective of his overall character.  

 Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Based on the Applicant’s overall record, testimony, witness testimony and post-service conduct the NDRB voted unanimously to upgrade the characterization of service to .  However, the narrative reason for separation shall remain.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

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 NDRB 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