Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND11-01244

ex-MMFN, USN

Current Discharge and Applicant’s Request

Application Received: 20110419
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) MILPERSMAN 1910-146 [DRUG ABUSE]

Applicant’s Request:	Characterization change to:	GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:	REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19991120 - 20000607  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20000608	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  20040917	Highest Rank/Rate:  MM3
Length of Service:  04 Year(s)   03  Month(s)   10 Day(s)
Education Level:  12	AFQT:  79
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM

Periods of UA/CONF:  NONE

NJP:  3

- 20010322:	Article 92 (Failure to obey lawful order or regulation, 3 specifications)
	Specification 1: Wrongfully consuming alcoholic beverages while under the age of twenty-one
	Specification 2: Wrongfully having an open container of alcohol in his vehicle
	Specification 3: Wrongfully entering an off limits establishment (Club Tango)
	Awarded: ORAL ADMONITION RESTR FOP RIR  Suspended:  NONE

- 20010809:	Article 92 (Failure to obey lawful order or regulation, underage drinking)
	Article 134 (General Article, wrongfully make false military ID on 20010405 for 3 members, 3 specifications)
	Awarded: ORAL ADMONITION RESTR EPD FOP RIR  Suspended:  NONE

- 20040722:	Article 112a (Wrongful use of controlled substance, 2 specifications)
	Specification 1: Wrongful use of cocaine
	Specification 2: Wrongful use of marijuana
	Awarded: RESTR EPD FOP RIR  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

- 20010322:	For violation of the UCMJ, Article 92

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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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 wants his discharge upgraded to enhance employment opportunities.
2.	The Applicant wants his discharge upgraded so he can receive veteran’s benefits.
3.	The Applicant contends his record of service warrants consideration for upgrading his discharge.
4.	The Applicant requests a change in the narrative reason for separation.
5.	The Applicant contends his post-service conduct warrants consideration for upgrading his discharge.

Decision

Date:  20120614	PERSONAL APPEARANCE HEARING	Location:  Washington D.C.	Representation:  NONE

By a vote of 3-2 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 three non-judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 4 specifications), Article 134 (General Article, Wrongfully making false military identification cards, 3 specifications), and Article 112a (Wrongful use of controlled substances, 2 specifications).  His record of service did not include any trials by court-martial.  The Applicant did not require a pre-service drug waiver for using illicit substances prior to entering the Navy.  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1:  (Non-decisional) The Applicant wants his discharge upgraded to enhance employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Non-decisional) The Applicant wants his discharge upgraded so he can receive veterans benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his record of service warrants consideration for an upgrade.  Despite a member’s record of service, certain serious offenses warrant separation to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of performance, grade, or time in service.  Wrongful use of a controlled substance can result in an unfavorable characterization of service, 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.  Even though the Applicant had multiple violations of Article 112a, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB concluded that relief based on the positive aspects of the Applicant’s service was not warranted.  Relief denied.

Issue 4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant requests a change in the narrative reason for separation.  The Applicant tested positive for controlled substances, which is a violation of Article 112a.  Based on his misconduct due to wrongfully using controlled substances, his command administratively processed him for separation from the Navy.  Although the Applicant was notified of multiple bases for separation, which included drug abuse, the NDRB found no reason to justify why it should not remain misconduct due to drug abuse.  The Board determined that the narrative reason for separation issued at the time of discharge is proper, as it accurately explains why the Applicant was discharged.  Relief denied.

Issue 5:  (Decisional) (Equity)  RELIEF WARRANTED.  The Applicant contends his post-service conduct warrants consideration for upgrading his discharge to General (Under Honorable Conditions).  The NDRB considers 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.  The provided honest and compelling testimony regarding his post-service, which included charity work, steady employment, completion of a college degree, pursuing a graduate level college degree, no criminal involvement with law enforcement officials, homeownership, and drug and alcohol rehabilitation.  After considering the facts and circumstances unique to this case, by a split vote of 3 to 2, the NDRB concluded that the Applicant’s post-service conduct, activities, and achievements demonstrates his in-service misconduct was a departure from the norm and not indicative of his overall character.  The Board determined that a change in the character of service to General (Under Honorable Conditions) is warranted.  Relief granted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, testimony, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  However, based on equitable considerations, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) but the narrative reason for separation shall remain MISCONDUCT.  The Applicant is no longer eligible for additional reviews or hearings by the NDRB.  He may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, for further review using DD Form 149.  

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water