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NAVY | DRB | 2006_Navy | ND0601015

Original file (ND0601015.rtf) Auto-classification: Denied

ex-SA, USN
ND06-01015

Current Discharge and Applicant’s Request :

Application Received:                               20 060725
Narrative Reason for Separation:                           misconduct
Character of Service:
Discharge Authority :                                MILPERSMAN 3630620
Last Duty Assignment/ Command at Discharge:       USS JOHN C STENNIS (CVN 74)

Applicant’s Request:
         Narrative Reason change to:                NONE REQUESTED
         Characterization chang e to:
         Review Requested :
Representation:

Decision:

Date of Decision:                                             20 070614
Vot e (characterization/reason)                      /
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:                           YES
Complete Discharge Package:
Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:          EQUITABLE

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

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                NONE
Active:                                    NONE
Period of Service Under Review :
Date of Enlistment:                                 19940125
Years Contracted :                                   (3 YRS ACTIVE DUTY)
Date of Discharge:                                  19970218
Length of Service:                                  02 Yrs 08 Mos 13 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:                      30 DAYS
Days Unauthorized Absence:                         30 DAYS
Days Confinement:                                   NONE

Education Level:
Age at this Enlistment:
AFQT:                                                 43
Highest Rate/Rank:                                   SN

Performance Evaluation Averages (number of marks):
Performance :                                         NOT FOUND IN RECORD
Behavior :                                            NOT FOUND IN RECORD
OTA :                                                   NOT FOUND IN RECORD
Extracted from:
Applicant’s Supporting Documents Other:

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION

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

19940606:        Commenced active duty.

19951021:        To u nauthorized absence 1900, 19951021.

19951121:        From unauthorized absence 1108, 19951121 (30 days/surrendered)

19960104 :        NJP for violation(s) of UCMJ:
         Article 86: UA from 19951021-19951121.
         Article 87: Missing ship’s movement on 19951024 and 19951113.
         Award: Forfeiture of $400 for 2 months (suspended for 6 months), restriction and extra duty for 45 days (20 days suspended for 6 months).
         No indication of appeal in the record.

19960104:        Retention Warning: Advised of deficiency (Misconduct as evidenced by Commanding Officers’ Nonjudicial Punishment on 19960104, for Article 86, UA for 30 days; and Article 87, missing ship’s movement on 2 occassions ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19960528 :        Forfeiture of pay and restriction awarded and suspended at NJP on 19960104 vacated due to continued misconduct.

19960528 :        NJP for violation(s) of UCMJ:
         Article 86: UA 45 minutes over liberty on 19960409.
         Award: Forfeiture of $400 for 2 months (suspended for 6 months), reduction to E-2 (suspended for 6 months).
         No indication of appeal in the record.

19961215 :        NJP for violation(s) of UCMJ:
         Article 86: UA for less than 24 hours.
         Award: Forfeiture of $400 for 2 months ($150 pay per month for 2 months suspended for 6 months), restriction and extra duty for 30 days (20 days suspended for 6 months).
         No indication of appeal in the record.

19970114 :        NJP for violation(s) of UCMJ:
         Article 112a : Wrongful use of marijuana .
         Award: Forfeiture of $ 5 00 for 2 month s , restriction and extra duty for 45 days , reduction to E-2 .
         No indic ation of appeal in the record.

19970116:        Administrative Remarks NAVPERS 1070. Applicant acknowledge d being administratively processed from the naval service by reason of misconduct due to drug abuse, which could result in a characterization of service as Other Than Honorable. When administrative processing was initiated, Applicant b eing processed to be placed in a limited duty status due to injuries incurred to knee, specifically, a torn miniscus, for which Applicant was pending surgery. Applicant waive d his entitlement to surgery and any follow up care and elect ed to go on administrative leave pending administrative separation.

19970121:        Drug and Alcohol Abuse Report: Indicates marijuana abuse, found not dependent, recommended for separation not via VA hospital.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                  NOT FOUND IN RECORD
Date Notified :                                        NOT FOUND IN RECORD
Reason for Discharge :                                MISCONDUCT DUE TO


Least Favorable Characterization:                          NOT FOUND IN RECORD
Record Supports Narrative Reason :                          YES
Date Applicant R esponded to N otification:                 NOT FOUND IN RECORD
Rights E lected at N otification :
Consult with Counsel                       NOT FOUND IN RECORD
Administrative Board                       NOT FOUND IN RECORD
Obtain Copies                              NOT FOUND IN RECORD
Submit Statement(s)                        NOT FOUND IN RECORD
GCMCA Review                                NOT APPLICABLE

Administrative Board Date:                         NOT FOUND IN RECORD

Recommendation of Commanding Officer (date):     NOT FOUND IN RECORD
Discharge directed by (date):                       NOT FOUND IN RECORD
Narrative reason directed :                                   NOT FOUND IN RECORD
Characterization directed:                                  NOT FOUND IN RECORD
Date Applicant Discharged:                         19970218


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

Total Number of Pages:                            1

D escription of Other Documentation:

Applicant’s Issues as Summarized by the Board:

1. The Applicant claims that he was easily persuaded to commit misconduct due to his youth ful immaturity and sheltered upbringing.

Decisional Issues:

Issue 1 ( ). The Applicant contends that his problems in the Navy can be attributed to the fact that he joined the Navy upon graduation from high school and that he was easily persuaded to commit mis c onduct. While he may feel that his youthful immaturity and “sheltered ” upbringing were the underlying cause s of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

There is credible evidence in the record that the Applicant used illegal drugs. 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. 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 denied.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. T he Applicant’s service was marred by a retention warning and 4 nonjudicial punishment proceedings for violations of Articles 86 (3 specs), 87 and 112a of the UCMJ. Violations of UCMJ Articles 86 (UA for 30 days or more), 87 (missing movement), and 112a (wrongful use, possession, etc., of controlled substances) are considered serious offenses for which a punitive discharge is authorized if adjudged by a special or general court martial. 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. Relief is not warranted.

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 discharge proper and equitable .

Minority Opinion

None .

Pertinent Regulation/Law

A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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 .

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 UCMJ, Article 86 (UA for more than 30 days), 87 (Missing Movement), and 112a (Wrongful 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 | ND0601015

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