Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700053

Original file (ND0700053.rtf) Auto-classification: Denied

ex-ABFAA, USN
ND07-00053

Current Discharge and Applicant’s Request:

Application Received:                               20 061012
         Characterization of Service:              UNDER (OTHER THAN HONORABLE CONDITIONS)
         Reason for Discharge :
         Discharge Authority :                       MILPERSMAN 1910-146
         Duty Assignment/ Command at Discharge:    uss carl vinson (cvn 70)

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
         Representation:
         Issues (as summarized by NDRB):          1. Post – Employed and Family


Decision:

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

Date of Decision:                                            20 070823
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:

Discussion

Decisional Issues:

Issue 1 ( ): 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 his statement of apology for his acts and stated that he is now employed . He also submitted two letter s of recommendation (one of which was from his wife ) and a police records check as documentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and e vidence of drug free existence . The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in his administrative discharge and in the characterization of the Applicant’s service .

For the information of the Applicant, certain serious offenses warrant separation from the naval service in order to maintain proper order and di scipline. The record documents the Applicant’s in-service use of illegal drugs which forms the basis for his discharge. V iolations of UCMJ Article 112a (wrongful use of a controlled substance) carr y a maximum penalty of a d ishonorable d isc harge and up to 5 year s of imprisonment if adjudicated by a court martial. The Applicant waived h is right to an administrative board and the discharge authority directed the Applicant’s discharge after ensuring compliance with MILPERSMAN 1910-146.

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. An “ under other than honorable conditions” characterization of service 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                20000226 - 20001120
Active:

Period of Service Under Review :
Date of Enlistment:                                 20001121
Years Contracted :
Date of Discharge:                                  20011221
Length of Service
         Active:                                     01 Yrs 01 Mths 01 D ys ( d oes not exclude lost time)
         Time Lost During This Period:             Days UA: 19      Days Confinement:

Education Level:
Age at this Enlistment:
AFQT:                                                 33
Highest Rate/Rank:                                   ABFAN

Performance Evaluation Averages (number of marks):
                                                      Performance : 3.0 Behavior : 1.0 OTA : 2.67 (1)

Awards and Decorations (as listed on the DD Form 214): NONE

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

20010806 :        NJP for violations of the UCMJ:
         Article 86 (2 specifications):
         Specification 1 : From 0715, 20010701 absent until he was apprehended at 1515, 20010704.
         Specification 2: From 0715, 20010710 absent until 0356, 20010723.
         Award: Forfeiture of $ 521 .00 for 2 months, restriction for 45 days.

20010812:        Retention Warning: Advised of deficiency (Unreliability, poor impulse control, and personal irresponsibility; more specifically, your misconduct as evidenced by your violation of the Uniform Code of Military Justice when you absented yourself from your unit without authority.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20010812 :         NAVDRUGLAB, San Diego, CA, reported App licant’s urine sample, received 20010726, tested positive for THC.

20010814:        Incident Report: Applicant admitted to MA2 Y_ that he had smoked two quart size bowls of marijuana while UA on 20010720.

20010818 :        NJP for violation of the UCMJ:
         Article 112a : Wrongful use marijuana on 20010723.
         Award: Forfeiture of $ 521 .00 for 2 months, restriction and extra duty for 45 days .

20011023 :        NJP . [Extracted from NAVPERS 1070/604, Awards.]

20011115:        Psychology Officer’s Evaluation of applicant: Applicant does not meet the diagnostic criteria for substance dependence and polysubstance abuse. Recommendations: Level I outpatient treatment. Attend AA meetings.

Elements of Discharge: [INVOLUNTARY]

Date Notified :                                        20010818
Reason for Discharge     -
         -
Least Favorable Characterization Authorized :     UNDER OTHER THAN HONORABLE

Date Applicant R esponded to N otification:                 20010818
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board

Commanding Officer R ecommendation (date):        OTHER THAN HONORABLE ( 20011124 )
Separation Authority (date):      COMCARGRU THREE ( 20011203 )
         Reason for discharge directed :             -
         Characterization directed:                         OTHER THAN HONORABLE
Date Applicant Discharged:                         20011221

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               6

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)             Wedding picture of applicant and wife

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 July 2001 until 21 August 2002, Article 1910-146, 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 112a (wrongful use of controlled substance) .

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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NAVY | DRB | 2007_Navy | ND0700053

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