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NAVY | DRB | 2006_Navy | ND0600963

Original file (ND0600963.rtf) Auto-classification: Denied

ex-AMEAA, USN
ND06-00963

Current Discharge and Applicant’s Request :

Application Received:                               20 060713
Narrative Reason for Separation:                           ( per Separation Code )
Character of Service:
Discharge Authority :                                MILPERSMAN 1910-146
Last Duty Assignment/ Command at Discharge:       vf-31 NAS OCEANA, VIRGINIA BEACH, VA

Applicant’s Request:
         Narrative Reason change to:               None requested
         Characterization chang e to:
         Review Requested :
Representation:                                              designated

Decision:

Date of Decision:                                             20 070419
The Discharge shall remain :

Regarding p ropriety , the Board found the discharge :
Regarding e quity , the Board found the discharge :
Vot e (characterization/reason)                      /
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Discharge Package Complete:

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                20000929 - 20001018
Active: USN                                 2000 101 9 - 2002112 0
Period of Service Under Review :
Date of Enlistment:                                 20021121
Years Contracted :                                   ;
Date of Discharge:                                  20050331
Length of Service:                                  02 Yrs 04 Mos 11 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:
                                                      NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 65
Highest Rate/Rank:                                   AME3

Performance Evaluation Averages (number of marks):
Performance /Behavior/OTA :                          NOT AVAILABLE

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20030612 :        NJP for violation(s) of UCMJ:
         Article 86: Absence without leave.
         Article 92: Failure to obey an order or regulation.
         Date of offenses: 030515 and 030527.
         Award: Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, oral admonition and reprimand, reduction to E-3.
         No indication of appeal in the record.

20050202 :        NJP for violation(s) of UCMJ:
         Article 86: Unauthorized absence.
         Date of offense: 050114.
         Award: Forfeiture of ½ pay per month for 2 months , restriction for 45 d ays , reduction to E-2. Forfeiture suspended for 6 months.
         No indication of appeal in the record.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

None.

Elements of Discharge:

Discharge Process :                                  DISCHARGE PACKAGE NOT AVAILABLE IN SERVICE RECORD
Date Applicant Discharged:                         20050331

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service:
         Service/Medical Record :                            2
         Other Period of Service:                                    0
Related to Post-Service Period:
         Community Service :                                   0
         Education :                                           2
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               1
         Criminal Records Checks:                                    2
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 1

Total Number of Pages:                            8

D escription of Other Documentation:
Certificate of Appreciation

Applicant’s Issues (as summarized by the NDRB) :
1. Did not commit the misconduct, charges were false, accepted discharge under duress
2. Characterization of service received not warranted by overall service record
3. Post-service conduct mitigates characterization of service

Decisional Issues:
The Board accepted Issue(s) 1- 3 for consideration.

Issue 1 (Propriety). The Applicant alleges that the charges were false, that he “accepted discharge” under duress and that he is not, and has never been, the type of person to use drugs not prescribed by a medical professional. As indicated above, 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 has not submitted any evidence to demonstrate that his discharge process was improper or that he did not freely exercise his rights because of improper influence brought against him. The Applicant’s uncorroborated assertions are not sufficient to overcome the presumption of regularity. Relief is not warranted on this issue.

Issue 2 (Equity). The Applicant was separated on the basis of misconduct due to drug abuse , a violation of Article 112a of the UCMJ . Mandatory processing for separation is required for Sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. In addition, t he Applicant’s service was marred by 2 nonjudicial punishment proceedings for violations of Articles 86 and 92 o f the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of 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. Relief is not warranted on this issue.

Issue 3 (Equity). The Applicant raises his post service conduct, namely his employment, efforts to b u y a home, and educational pursuits as evidence of good post-service conduct. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient at this time to mitigate the conduct which precipitated the discharge. Relief is not warranted on this issue .

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 . After a thorough review of the available evidence , to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharg e proper and equitable.

Pertinent Regulation/Law

A . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, Article 1910-146 (formerly 3630620), 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 5 02, 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 U CMJ, Article s 92, Fail to obey order or regulation, and 112a, Wro ngful use, possession, etc., of controlled substances.

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 . 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 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, 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 “PTSD.” 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 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.

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

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NAVY | DRB | 2006_Navy | ND0600963

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