Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700085

Original file (ND0700085.rtf) Auto-classification: Denied

ex-STG3, USN
ND07-00085

Current Discharge and Applicant’s Request:

Application Received:                               20 061101
Characterization of Service:                       UNDER OTHER THAN HONORABLE CONDITIONS
Reason for Discharge :                               MISCONDUCT
Discharge Authority :                                MILPERSMAN 1910-146
Duty Assignment/ Command at Discharge:             NSW GRP ONE TRNG, NAB CORONADO, CA

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

Applicant’s i ssues :
1 . Re-enlist into U.S. Navy - Equity
2 . Improperly discharged at end of obligated service. - Propriety
3. Youth and Immaturity – Equity
4. Post Service – Equity.


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:

Issue(s) 1: 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 .

Issue 2 ( ). The Applicant contends he was improperly discharged at the end of obligated service. In accordance with MILPERSMAN 1910-208, members may not be involuntarily extended beyond expiration of active obligated service (EAOS) for the sole purpose of administrative separation processing. The applicant was discharged at EAOS. The Naval Discharge Review Board (NDRB) found that the governments actions were proper and equitable in administratively processing this case.

Issue 3 ( ). The Applicant contends that his problems in the Navy can be attributed to his " Youth and Immaturity ." While he may feel that his youth and immaturity was the underlying cause 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.

Issue 4 ( ). 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 should 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. As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

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)                                19971014 - 19980120
Active:                                              19980121 - 20020106

Period of Service Under Review :
Date of Enlistment:                                 20020107
Years Contracted :                                   Not found in record
Date of Discharge:                                  20050106
Length of Service
         Active:                                     03 Yrs 00 Mths 00 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:                                                 80
Highest Rate/Rank:                                   STG2

Performance Evaluation Averages (number of marks):
                                    Performance : 4.0 ( 3 ) Behavior : 3.3 ( 3 ) OTA : 3.86

Awards and Decorations (as listed on the DD Form 214): NAVY AND MARINE CORPS COMMENDATION MEDAL, COMBAT ACTION RIBBON, NAVY UNIT COMMENDATION, GOOD CONDUCT AWARD, NATIONAL DEFENSE SERVICE MEDAL, HUMAITARIAN SERVICE MEDAL, FLOC(2) SPECIAL WARFARE INSIGNIA, NAVAL PARACHUTIST INSIGNIA

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

20041108         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20041027 , tested positive for THC .

20041116 :        NJP for violation(s) of UCMJ:
         Article 112a: Wrongful use of a controlled substance, marijuana.
         Award: Forfeiture of $ 946 .00 for 2 month s , reduction to E- 4 . Forfeiture suspended for 6 months.
         No indic ation of appeal in the record.

Elements of Discharge: [INVOLUNTARY]

Date Notified :    20041202
Reason for Discharge     -

Least Favorable Characterization Authorized :

Date Applicant R esponded to N otification:        20041206
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board
GCMCA Review

Administrative Board Date :       20041229
Findings, by preponderance of the evidence:     By - .
         By separation warranted.
Recommendation on Separation: By
Recommendation on Characterization:     By

Commanding Officer R ecommendation (date):        ( 20050104 )
Separation Authority (date):      COMMANDER, NAVAL SPECIAL WARFARE COMMAND ( 20050104 )
Reason for discharge directed : -
Characterization directed:
Date Applicant Discharged:       20050106

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               122

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)
         Drug Tests: Junk Science:
         Upgrading your military discharge
         Military Justice 101 - Part 3 (3 pages)
         Military Justice 101 - Part III (2 pages)
         Article from Today in the Military
         Military Justice 101 - Part III
         Article on Federal Drug Testing Programs in Jeopardy (3 pages)
         Article on False Positive Drug Testing

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until
28 April 2005, 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 a controlled substance, marijuana.)

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 | ND0700085

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