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NAVY | DRB | 2007_Navy | ND0700029
Original file (ND0700029.rtf) Auto-classification: Denied

ex-AA, USN
ND07-00029
Current Discharge and Applicant’s Request:

 Application Received:                               20 061004
         Characterization of Service:             
         Reason for Discharge :                     
         Discharge Authority :                       MILPERSMAN 3630620
         Duty Assignment/ Command at Discharge:    patrol squadron forty-seven

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
         Representation:                             
        

Decision:

 By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE .  
By a vote of 5-0 the Reason for Discharge shall remain MISCONDUCT .
Date of Decision:                                            20 070816      
Location of Board:                                  Washington D.C.
Complete Service Record:                                    yes
Complete Medical Record:                           yes
Complete Discharge Package:                        yes

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



Applicant’s Issues, as summarized by the Board:
1. R e-enlistment code change .
 2 . Post service

Issue 1: The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to page one of the Addendum regarding this issue.
        
Decisional Issues:
 Issue 2 (Equity). 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 commendatory documentation provided by t he Applicant ’s employer was favorably accepted by the Board . While the Applicant’s substance abuse evaluation scores were accepted as favorable documentation to the Board , it was observed that the evaluation was administered as a result of the Applicant’s second DUI. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge. Violations of UCMJ Article 112a is considered serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martia l. Relief denied.

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.
 .


Summary of Service:

 Prior Service:
 Inactive: USNR (DEP)                                19911223 - 19920803
Active:

Period of Service Under Review :
Date of Enlistment:                                 19920804
Years Contracted :                                  
Date of Discharge:                                  19940920
Length of Service
          Active:                                      02 Yrs 01 Mths 17 D ys ( d oes not exclude lost time)
         Inactive:                                            00 Yrs 00 Mths 00 D ys
          Time Lost During This Period:            

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 64
Highest Rate/Rank:                                   AN

Performance Evaluation Averages (number of marks):
                                     Performance : 3.7 ( 3 ) Behavior : 2.9 ( 3 ) OTA : 3.20

Awards and Decorations (as listed on the DD Form 214): SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL



Service Record Entries Related to Characterization of Service or Reason for Discharge

 19940809 :        NJP for violation(s) of UCMJ:
          Article 112a : Wrongful use of controlled substance.
         Award: Forfeiture of $ 242 . 25 for 2 month s , restriction for 60 days , reduction to E- 2 .
         No indic ation of appeal in the record.



Medical Record Entries Related to Characterization of Service or Reason for Discharge

 19940803 :        Tripler Army Medical Clinic: Applicant present per DAPA with a positive for THC on drug screen urinalysis.
          Assessment: THC abuse - no signs of dependence.
         Plan: No further care recommended.
         Counseled on dependence/abuse characters.
          Return clinic prn - command notified.


Elements of Discharge: [INVOLUNTARY]

 Date Notified :    19940809
Reason for Discharge    
Least Favorable Characterization Authorized :    

Date Applicant R esponded to N otification:        19940809
Rights E lected at N otification :
Consult with Counsel   
Obtain Copies of Documents      
Submit Statement(s) (date)      
Administrative Board   
GCMCA Review   

Commanding Officer R ecommendation (date):        ( 19920817 )
Separation Authority (date):      BUPERS ( 19940902 )
Reason for discharge directed :  
Characterization directed:      
Date Applicant Discharged:       19940920



Additional Documents Submitted by Applicant and Considered By Board

 Total Number of Pages:                               5

Related to Period of Service Under Review :
          From Service and/or Medical Record :                Other Records :  

Related to Other Period (s) of Service:
         From Service and/or Medical Record:               Other Records:   

Related to Post-Service Period:
          Employment:                                           Finances:        
         Health/Medical Records:                             Substance Abuse:        
         Family/Personal Status:                             Education:       
         Community Service Efforts:                         References:     
         Criminal Records:                         

Other:
          Additional Statements From Applicant :             From Representative:    
         Other Documentation (Describe)             Evaluation from Life Enhancement (2 pages)



Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 22 Jul y 19 94 until 02 Oct ober 1 9 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 112a, Wrongful Use 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, provi ded 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 grante d 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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