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NAVY | DRB | 2006_Navy | ND0601070

Original file (ND0601070.rtf) Auto-classification: Denied

ex-ACAN, USN
ND06-01070

Current Discharge and Applicant’s Request:

Application Received:                               20 060814
Narrative Reason for Separation:                           MISCONDUCT -
Character of Service:
Discharge Authority :                                MILPERSMAN 3630620
Last Duty Assignment/ Command at Discharge:       USS CONSTELLATION (CV-64)

Applicant’s Request:
         Narrative Reason change to:                none requested
         Characterization chang e to:                Honorable
         Review Requested :
Representation:
Issues (as summarized by NDRB):                   1. EMPLOYMENT
                                                      2. POST SERVICE – EDUCATION, VOLUNTEER WORK


Decision:

Date of Decision:                                            20 070719
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

By a vote of the Characterization shall .
By a vote of the Reason for Discharge shall - .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                19940112 - 19940503
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 19940504
Years Contracted :                                   ;
Date of Discharge:                                  19970126
Length of Service:                                  02 Yrs 07 Mos 29 Days ^{Does not exclude lost time, if any.}
Time Lost During This Period:                      UNABLE TO DETERMINE
Days Unauthorized Absence:                         UNABLE TO DETERMINE
Days Confinement:                                   25

Education Level:
Age at this Enlistment:
AFQT:                                                 77
Highest Rate/Rank:                                   AC3

Performance Evaluation Averages (number of marks):
Performance :                                         3.7 (2)
Behavior :                                            3.9 (2)
OTA :                                                   3.80

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, SOUTHWEST ASIA SERVICE MEDAL WITH ONE BRONZE STAR, MERITORIOUS UNIT COMMENDATION

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

19951219 :        Summary Court-Martial.
         Charge: V iolation of the UCMJ, Article 111 .
         Specification: Drive while drunk on 19950917.
         Finding: Guilty.
         Sentence: Forfeiture of $704, confinement for 30 days.
         CA action 19960201 : Sentence approved and ordered executed.

19951227:        Applicant to confinement USS CONSTELLATION brig.

19960120         Applicant released from confinement (25 days).

19960201:        Retention Warning: No further information found in service record. [Extracted from Commanding Officer’s letter dated 19970320]

19960925 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 19960912, tested positive for amphetamine/methamphetamine.

19961031 :        NJP for violations of UCMJ:
         Article 86 : At or about 0700, 19961001 without authority absent himself from his unit and did remain so absent until at or about 074 0 19961001.
         Article 112a: Wrongfully use amphetamine/methamphetamine on or about 19960910.
         Award: Forfeiture of $ 537 for 2 month s , restriction and extra duty for 45 days , reduction to E-3.
         No indic ation of appeal in the record.

19970103 :        Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to drug abuse.

19970107 :        F ollowing consult ation with counsel, the Applicant elected to appear before an Administrative Discharge Board.

19970126 :        Commander Cruiser-Destroyer Group ONE, directed the Applicant's di s charge with a characterization of service as under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and misconduct due to drug abuse . This letter referenced the Commanding Officer’s letter dated 19970122 recommending the Applicant’s discharge which was not found in the record.

19970127 :        Commanding Officer, USS Constellation (CV-64) directed the Applicant’s discharge in accordance with Commander Cruiser-Destroyer Group ONE’s direction in absentia.

19970418:        Commanding Officer, USS Constellation (CV-64) informed Bureau of Naval Personnel of the Applicant’s discharge in absentia. Stating that the Applicant did request to make a statement, however applicant commenced a period of unauthorized absence and was subsequently discharged in absentia.

Elements of Discharge: [INVOLUNTARY]

Discharge Process :
Date Notified :                                        19970103
Reason for Discharge                                MISCONDUCT -
                                                      MISCONDUCT -
                                                      MISCONDUCT -
Least Favorable Characterization:
Date Applicant R esponded to N otification:                 19970107
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
GCMCA Review

Administrative Board Date:
Findings and Recommendations:                      BOARD NOT HELD, MEMBER UNAUTHORIZED ABSENT

Recommendation of Commanding Officer (date):     19970122
Discharge directed by (date):                       COMMANDER, CRUISER-DESTROYER GROUP ONE 19970126
Narrative reason directed :                                   MISCONDUCT DUE TO
                                                      MISCONDCUT DUE TO commission of a serious offense
                                                      MISCONDUCT DUE TO A pattern of misconduct
Characterization directed:
Date Applicant Discharged:                         19970126 IN ABSENTIA

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 :                                   1
         Education :                                           6
         Employment :                                          0
         Health /Medical :                                     0
         Character Statements:                               0
         Criminal Records Checks:                                    1
         Additional Statements from Applicant:             1
Other Documentation      (Describe Below)                 0

Total Number of Pages:                            10

Discussion

Issue 1 ; Employment - Equity : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Decisional Issues:

Issue 2; Post Service Conduct ( ): The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided an unofficial transcript from Virginia Commonwealth University, a criminal records check from Prince Williams County Police Department and a letter from Sexual Assault Victims Advocacy Service documenting his volunteer work a s documentation of post-service accomplishments. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Therefore, no relief will be granted.

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 .

Pertinent Regulation/Law

A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct ober 19 96 until 11 Dec ember 19 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 .

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 | ND0601070

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