ex-EN2, USN

Current Discharge and Applicant’s Request

Application Received: 20100722
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)	19901115  	Active:	 19901116 – 19940721 HON
				USN 19940722 – 20000331 HON
				USN 20000401 – 20040715 HON

Period of Service Under Review:
Date of Current Enlistment:  20040716	Age at Enlistment:  
Period of Enlistment:   Years  28 MONTHS Extension
Date of Discharge:  20091030	Highest Rank/Rate:  EN1
Length of Service:   Years     Months   15 Days
Education Level:  	AFQT:  37
Evaluation Marks:	Performance:  4.0 (5)	Behavior:  3.4 (5)	OTA:  3.86

Awards and Decorations (per DD 214):	GWOTSM NDSM MUC AFEM NMCAM (5) NAVY”E” SSDR (5) ESWS GCM (5) LoC 
Periods of UA/CONF:  

NJP:  1

- 20090708:	Article 92 (Failure to obey order or regulation)
	Article 112a (Wrongful use of controlled substance)
	Awarded: RIR FOP  Suspended:  FOP

SCM:  NONE	SPCM:  	CC:  

Retention Warning Counseling:  1

- 20030904:	For failure to meet body composition assessment standards

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “GLOBAL WAR ON TERRORISM SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION, ARMED FORCES EXPEDITIONARY MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (5), NAVY “E”, SEA SERVICE DEPLOYMENT RIBBON (5), ENLISTED SERVICE WARFARE SPECIALIST, GOOD CONDUCT MEDAL (5), FLAG LETTER OF APPRECIATION, CERTIFICATE OF COMMENDATION (4)”
	Block 18, Remarks, should read: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 901116-040715”

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/Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 2 June 2008 until 9 November 2009, 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.

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

Applicant’s Issues

1.	The Applicant contends his discharge is inequitable, because it was based on an isolated incident in 18 years of otherwise honorable service.

Decision

Date:  20110929	              	    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 NDRB 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 identified one decisional issue to the NDRB.  Additionally, the NDRB completed a thorough review of the circumstances leading to  discharge, and the discharge process, to ensure  discharge met the pertinent standards of both equity and propriety.  The Applicant’s service record included one NAVPERS 1070/613 (Page 13) retention-counseling warning during his current enlistment period of service under review due to failure to meet body composition assessment standards and one  for s of the Uniform Code of Military Justice (UCMJ).  Specifically, the Applicant was found guilty of violation of Article 92 (Failure to obey lawful orders and regulations) and Article 112(a) (Wrongful use, possession, etc of a controlled substance – methamphetamines).  The Applicant’s enlistment record reflects his entry into military service with pre-service waivers for drug use – marijuana and cocaine, with police involvement.  Furthermore, the Applicant’s official service record reflects signed documents attesting to fully understanding the U.S. Navy Drug and Alcohol Abuse Policy.  The Applicant’s service record documents a positive urinalysis from the Naval Drug Screening Laboratory, an NCIS report of investigation, and a command investigation into the wrongful drug use.  The Applicant’s violation of Article 112 (a) required mandatory processing for separation in accordance with the Navy’s Zero Tolerance Drug Policy.

When notified of administrative separation processing using the  notification procedure, the Applicant elected to waive his rights to consult with a qualified legal counsel, to submit written matters to the Separation Authority, and to request an administrative board hearing be held to present his case for retention.  The Separation Authority reviewed the evidence of record and determined that a preponderance of the evidence supported the basis for separation: Misconduct – Drug Abuse per Article 1910-146 of the Naval Military Personnel Manual (MILPERSMAN).  As such, the Separation Authority directed the Applicant be discharged from the Naval Service and that his current period of enlistment reflect an Under Other Than Honorable Conditions characterization of his service with a re-enlistment code of RE-4 (not recommended for reenlistment).     

(Decisional Issues) (Propriety/)  .  The Applicant seeks relief through an upgrade of characterization of his service to Honorable conditions as a matter of equity; the Applicant contends that his misconduct was an isolated incident.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut that presumption, to include evidence submitted by the Applicant.  The Applicant submitted no additional evidence to rebut that presumption.  The Applicant did not elect to defend himself at an administrative discharge board.  The Applicant was accorded all his rights and was presented an opportunity to address a board of his seniors and peers to present his case for retention or for characterization of service.  The NDRB found no issue of impropriety related to the discharge action.

The Applicant contends his discharge be upgraded based on his record of service, which was honorable apart from an isolated incident of misconduct.  Each period of enlistment is an independent obligation and characterization of service is determined for that specific period of enlistment.  Despite a Sailor’s prior record of service, though, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline - violation of Article 112(a) meets this standard.  The Applicant’s service record documents his acknowledging - in writing - the U.S. Navy Drug Policy.  As a Petty Officer Second Class - in zone for selection to Petty Officer First Class - the Applicant was fully aware that there is a zero tolerance 

policy for drug abuse and was fully aware of the consequences of violating it.  Extenuating circumstances in this specific case include the fact that the violation of this well-known service policy was committed by an 18 year veteran of the service who was responsible for leading, teaching, and mentoring our junior enlisted Sailors and for implementing the policy - that he himself knowingly violated.  The record clearly documents willful misconduct and demonstrated that he was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  

When a  service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  Although the Applicant completed three honorable periods of enlistment, his current enlistment period documents a knowing and willful violation of Article 112(a).  Violation of Article 112(a) is a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial.  In the Applicant’s case, the Command did not pursue a punitive discharge but instead opted for the more lenient nonjudicial punishment and administrative separation process.  The Separation Authority ultimately directed a characterization of service of Under Other Than Honorable Conditions, which was warranted and was consistent with the service norms for violation of Article 112(a).  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, regardless of grade and length of service, and falls short of what is required for an upgrade in the characterization of service.  The NDRB found the characterization of the Applicant’s discharge was proper, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, the NDRB determined that an upgrade would be inappropriate; relief as requested by the Applicant is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  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 and Post-Service Conduct.

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