ex-YNSR, USN

Current Discharge and Applicant’s Request

Application Received: 20090730
Characterization of Service Received:    
Narrative Reason for Discharge:    
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  INABILITY TO ADAPT

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20060913 - 20070408  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070409	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080317	Highest Rank/Rate:  YNSA
Length of Service:   Year(s)     Month(s)   09 Day(s)
Education Level:  	AFQT:  84
Evaluation Marks:	Performance:  2.0 (1)	Behavior:  2.0 (1)	OTA:  1.33

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  
- 20080307:	Article  (Drugs - marijuana)
	Awarded:     Suspended:  

SCM:        SPCM:         CC:  

Retention Warning Counseling:  

- 20070502:	For a negative entry on your Recruit Personnel Data Record (Hard Card) to include:  difficulty passing the academic testing requirements as evidenced by your double test one academic failures, and sub-standard performance.

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:	

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

Applicant’s Issues

1.  Enlistment predicated on misleading, dishonest, and fraudulent statements by the recruiter.
2.  Denied information, counsel, and due process throughout basic training and in the fleet when trying to validate the recruiter’s claims.
3.  Medical condition and emotional health were not adequately considered.
4.  Isolated incident in almost 12 months of active duty.
5.  Post-service conduct warrants consideration.

Decision

Date:  20100513		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (DRUG ABUSE).

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 NAVPERS 1070/613 (Page 13) warning, and one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use of a controlled substance: marijuana, amount not found in record).  The Applicant  a pre-service drug waiver prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative procedure, the Applicant  his rights to consult with a qualified counsel, submit a written statement and request an administrative board.

Issue 1:  (Decisional) ()  .  The Applicant contends his enlistment was predicated on misleading, dishonest, and fraudulent statements by the recruiter.  On 13 September 2006, the Applicant signed the Enlistment/ Reenlistment Document, Armed Forces of the United States.  The purpose of this document is to record the enlistment or reenlistment into the U.S. Armed Forces.  The Applicant enlisted in the Naval Reserve for 8 years beginning with pay grade E-1. Annex A stated he was enlisting for an active duty period of four years with the option of postal clerk class “A” school guarantee, but he declined the enlistment bonus and there was nothing to indicate promises of college money or advancement. (The Applicant enrolled in the Montgomery GI Bill on 12 April 2007.)  In block 8.c., the document clearly states in bold and capitalized letters, “ANYTHING ELSE ANYONE HAS PROMISED ME IS NOT VALID AND WILL NOT BE HONORED.”  The Applicant initialed right below this statement.  When the Applicant was discharged from the delayed entry/enlistment program (DEP) on 9 April 2007, a change was noted to his enlistment and recorded on Annex B.  Annex B, which was signed by the Applicant on 21 November 2006, changed his option to Yeoman class “A” school guarantee.  In block 13.a., the Applicant signed the certification and acceptance statement on 13 September 2006 that stated, “I CERTIFY THAT I HAVE CAREFULLY READ THIS DOCUMENT.  ANY QUESTIONS I HAD WERE EXPLAINED TO MY SATISFACTION.  I FULLY UNDERSTAND THAT ONLY THOSE AGREEMENTS IN SECTION B OF THIS DOCUMENT OR RECORDED ON THE ATTACHED ANNEX(ES) WILL BE HONORED.  ANY OTHER PROMISES OR GUARANTEES MADE TO ME BY ANYONE ARE WRITTEN BELOW: (If none, X “NONE and initial.).  The Applicant marked “NONE” and initialed.  After a careful review of the Applicant’s enlistment documentation, the NDRB determined the Applicant’s enlistment contract was very clear as to the specifics of what he was guaranteed and this issue is without merit.

Issue 2:  (Decisional) ()  .  The Applicant contends he was denied information, counsel, and due process throughout basic training and in the fleet and into the fleet when he was seeking to learn his options and validate he recruiter’s claims.  From the Applicant’s statement, he had spoken to his recruit training division commanders, chaplain and other officers, legal department, chain of command, coworkers, and ship psychologist.  In the Applicant’s letter dated 1 April 2007, he stated, “While enlistment is still temporary (four years of active duty), it will be a change that I have never been through up until now.  Every person handles differently; I, for one, have never been very good at accepting it.”  In his mother’s letter dated 20 June 2007, she stated, “But please know that you have all enriched his life and he considers himself the luckiest man on earth to know you all.  I know he tells you this, but he wanted me to remind you!”  The Applicant completed recruit training, “A” school, and reported to his ship as ordered.  After reading the statements and other documentation, the NDRB determined the Applicant was provided counsel and due process, but did not receive the answer he wanted—that he could null and void his contract and be discharged from the Navy.  The NDRB recognizes that many of our servicemembers do not want to make the Navy a career, but still manage to serve honorably.  The Applicant had an obligation to the Navy, but chose to commit misconduct to separate himself from the Navy.  Relief denied.

Issue 3:  (Decisional) ()  .  The Applicant contends his medical condition and emotional health were not adequately considered.  From the Applicant’s documentation, the NDRB opined he suffered from severe anxiety disorder, depression and post-traumatic stress disorder.  The NDRB requested but did not receive a copy of the Applicant’s medical records, nor did the Applicant provide them.  The NDRB found no Page 13 that specifically addressed the performance deficiencies related to physical or behavioral condition and resources available.  Since a determination as to whether or not the Applicant may have been recommended for separation due to a mental condition, the NDRB applied the presumption of regularity of governmental affairs for this issue.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any documented evidence for the Board’s consideration, to support the contention that the Applicant’s medical condition and emotional health were not adequately considered. Relief denied.

Issue 4:  (Decisional) ()  .  The Applicant contends his misconduct was an isolated incident in almost 12 months of active duty.  The NDRB found no documentation, nor did the Applicant provide any, to explain the circumstances regarding his misconduct.  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 processing for administrative separation regardless of grade or time in service.  This 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 the more lenient administrative discharge.  The NDRB determined an upgrade would be inappropriate.

Issue 5:  (Decisional) ()  .  The Applicant stated since being discharged he has never done better and is proud of his success.  The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  The Applicant provided documentation of employment and training, clear criminal record, civilian drug testing, and several character letters of reference.  The NDRB applauds the Applicant’s post-service efforts in such a short period of time.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6” (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct.  he Applicant should provide additional documentation which could include but not limited to: evidence of financial stability (home ownership/home rental history, credit card payments); college transcripts; documentation of community/church service; and if married, a marriage certificate.  The Applicant should be aware completion of these items alone does not guarantee an upgrade from 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.  However, after a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his statement and the facts and circumstances unique to this case, the NDRB determined the evidence of post-service conduct was not sufficient enough in content, length or duration to form a basis of relief.  

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   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain  (DRUG ABUSE).

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until Present, 
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. 

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.  

Post-Service Conduct:  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.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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 at or completion of higher education (official transcripts); 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 accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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