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NAVY | DRB | 2007_Navy | ND0700201
Original file (ND0700201.rtf) Auto-classification: Denied
ex-SHSN, USN
ND07-00201
Current Discharge and Applicant’s Request
Application Received: 20061211   Characterization Received:
Narrative Reason: MISCONDUCT                                Authority: MILPERSMAN 1910-146

Applicant’s Request:     Characterization change to:
                           Narrative Reason change:

Applicant’s Issues:      1. Reenlist     
                           2. Treated unfairly


Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Date: 20 071129                               Location: Washington D.C.


Discussion

 Issue 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 that his unfair treatment resulted in his inequitable characterization of service. In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut th e presumption . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. T he Applicant has failed to produce any evidence of his unfair treatment other than his unsubstantiated allegations. In the case of drug use, s eparation processing is mandatory for Sailors who abuse illegal drugs . The Applicant’s case was heard before an administrative board which unanimously voted that he had violated the UCMJ Article 112a and that his conduct warranted discharge with a “under other than honorable conditions” characterization of service. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a dishonorable disc harge and up to 5 year s of imprisonment if adjudicated by a court martial. E ven if the Applicant could document his claim of unfair treatment with regards to his family separation this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The record clearly reflects his violation of UCMJ Article 112a which demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for h is conduct or that he should not be held accountable for h is actions .

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that



Summary of Service

Prior Service:
 Inactive: USNR (DEP)              20020126 - 20020306              Active:         
Period of Service Under Review:
 Date of Enlistment: 20020307      Years Contracted : ;               Date of Discharge: 20051222
Length of Service: 03 Yrs 09 Mths 16 D ys                                    Lost Time:
Education Level:         Age at Enlistment:       AFQT: 46          Highest Rank/Rate: SHSN
Evaluation marks (# of occasions):       Performance: 3.3 ( 4 )     Behavior: 2.0 ( 4 )                OTA: 2.7 0 (4)
Awards and Decorations (per DD 214): NUCM, SSDR(2), NDSM, OSR, AFEM, GWOTEM, GWOTSM


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

 20040318 :        CO's NJP - Viol UCMJ Art. 128 (a ssault consummated by a battery ) . Awarded - FOP ($698.00 for 2months); RIR (E-2); Restr (45days); Extra duties (45days).

Discharge Process

 Date Notified:                                       NOT FOUND IN RECORD
 Reason for Discharge:    -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                 NOT FOUND IN RECORD
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      
         GCMCA review                               

Administrative Board Date :            
Findings, by preponderance of the evidence:     - was .
                  BY SEPARATION was WARRANTED.
Recommendation on Separation:   BY -
Recommendation on Characterization:     BY -

Commanding Officer Recommendation (date):        ( 20051129 )
Separation Authority (date):     COMMANDER, U.S. NAVAL FORCE, JAPAN ( 20051207 )
Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20051222



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)      


Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until Present, 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 .

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, 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 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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