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NAVY | DRB | 2007_Navy | ND0700047

Original file (ND0700047.rtf) Auto-classification: Denied

FOR
ex-AR, USN
ND07-00047

Current Discharge and Applicant’s Request:

Application Received:                               20 061016
         Characterization of Service:
         Reason for Discharge :                      -
         Discharge Authority :                       MILPERSMAN 1910-146
         Duty Assignment/ Command at Discharge:    USS ABRAHAM LINCOLN (CVN 72)

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

Applicants Issues : None submitted.
Decision:

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

Date of Decision:                                            20 070816
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:

Issue (Equity): 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 Board found no indication in the record that the Applicant was denied treatment for his drug use. In fact the record shows that the Applicant refused the treatment recommended to him by the Navy. 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.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as being under honorable conditions. 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. The Applicant’s service was marred by a retention warning, followed by nonjudicial punishment (Captain’s Mast) on two occasions for violations of Article 86, Article 112, and Article 112a. Violations of UCMJ Articles 112 and 112a are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Court-Martial. An upgrade to honorable would therefore be inappropriate in this case .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                20010716 - 20020205 ELS
Inactive: USNR (DEP)                                20020225 - 20020310

Period of Service Under Review :
Date of Enlistment:                                 20020311
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20040325
Length of Service
         Active:                                     02 Yrs 00 Mths 14 D ys ( d oes not exclude lost time)
         Inactive:                                            NONE
         Time Lost During This Period:             7 Days UA: 7 Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 31
Highest Rate/Rank:                                   AA

Performance Evaluation Averages (number of marks):
                                    Performance : N/A Behavior : N/A OTA : N/A

Awards and Decorations (as listed on the DD Form 214): NAVY UNIT COMMENDATION, NAVY "E" RIBBON, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON

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

20020907:        Retention Warning: Advised of deficiency (As evidenced by multiple warrants issued in the Municipal Court of the City of Gatesville, Texas for driving without liability insurance, operating an unregistered vehicle, excessive acceleration, failure to appear, violation of promises to appear, and expired motor vehicle inspection sticker), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20030905 :        NJP for violation(s) of UCMJ:
         Article 86: Abandoning watch or guard on or about 20030823 .
         Article 112: Drunk on duty on or about 20030823 .
         Award: Forfeiture of $600.00 for 2 month(s), restriction and extra duty for 45 days, reduction to E-1.
         No indication of appeal in the record.

20030905:        Retention Warning: Advised of deficiency (CO’s NJP of 19930905 for violation of UCMJ, Article 86, Abandoning watch or guard and Article 112, drunk on duty), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20040225 :        NJP for violation(s) of UCMJ:
         Article 86: (2 specs).
         Specification 1: Absent from unit from on or about 20031212 until on or about 20031215.
         Specification 2: Absent from unit from on or about 20040213 until on or about 20040217.
         Article 112a: Wrongful use of marijuana on or about 20040101.
         Award: Forfeiture of $622.00 for 2 month(s), restriction and extra duty for 45 days.
         No indication of appeal in the record.

Elements of Discharge: [INVOLUNTARY]

Date Notified :                                        20040309
Reason for Discharge     -
         -

Least Favorable Characterization Authorized :     ILLEGIBLE IN THE RECORD

Date Applicant R esponded to N otification:                 20040309
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):        ( 20040316 )
Separation Authority (date):      COMCRUDESGRU THREE ( 20040317 )
         Reason for discharge directed :             -
         Characterization directed:
Date Applicant Discharged:                         20040325

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               1

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)

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 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 112 and 112a .

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 me mbers 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 | 2007_Navy | ND0700047

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