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NAVY | DRB | 2007_Navy | ND0700115
Original file (ND0700115.rtf) Auto-classification: Denied
ex-EMFR, USN
ND07-00115
Current Discharge and Applicant’s Request
Application Received: 20061102   Characterization Received: UNDER OTHER THAN HONORABLE
Narrative Reason: MISCONDUCT-DRUG ABUSE (USE) Authority: MILPERSMAN 3630620

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Applicant claims sexual and physical abuse by his shipmates contributed to and sufficiently
                           mitigated his misconduct of record to warrant the board’s relief.
                            2. Post – service - Equity

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT DRUG ABUSE .
Date: 20 071107             Location: Washington D.C.         Representative: American Legion

Discussion

 Pending results of hearing
Issue 1 ( ) : The Applicant implies that his misconduct was the result of racial discrimination and sexual/physical abuse by his shipmates . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was discriminated against or sexual/physically abused . The Applicant ’ s statements alone do not overcome the government ’ s presumption of regularity in this case. Relief is denied.

Issue 2 ( ) : 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 verifiable employment records, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. T he Applicant did not provide 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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19890308 - 19891002              Active:         
Period of Service Under Review:
 Date of Enlistment: 19891003               Years Contracted : ; Extension:          Date of Discharge: 19911031
Length of Service : 02 Yrs 00 Mths 29 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 52          Highest Rank /Rate : ENFN
Evaluation marks (# of occasions):       Performance: 2.9 ( 2 )       Behavior: 2.8 ( 2 )          OTA: 3.4
Awards and Decorations ( per DD 214): SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL (1 BRONZE STAR).

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 19910523 :        CO's NJP -- Viol UCMJ Art. 112a – Wrongful use of a controlled substance (marijuana) . Awarded - FOP ( $422.00 ) for ( 2 months); RIR ( E-2 ); Restr iction for ( 60 ays).
19910523:        Applicant was retained in service and advised of any further incidents requiring disciplinary action may result in administrative discharge.

 19910612:        DAAR: M arijuana abuse as a result of a random urinalysis, CAAC found Applicant dependent, recommended Level II Treatment, Medical Officer’s evaluation found Applicant not dependent, recommended Level II Treatment, Commanding Officer recommended retention and Level II Treatment.
19910929:        CO's NJP -- Viol UCMJ Art. 112a – Wrongful possession of marijuana and wrongful use of marijuana. Awarded - RIR (E-1); Restr iction for (45ays); Extra duties (45ays), recommended for Admin Sep.

Discharge Process

 Date Notified:                                       19910929
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19911004
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):        ( 19911019 )
Separation Authority (date):     BUPERS WASHINTON, DC ( 19911028 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19911031

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe) News Letter From Department of Public Works, City of Los Angeles, Bureau of Street Lighting , Certificate of Birth, Alien Registration Receipt Card .




Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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, possession of a 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . 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.
Employmen t / 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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