Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700282

Original file (ND0700282.rtf) Auto-classification: Denied

ex-FR, USN
ND07-00282

Current Discharge and Applicant’s Request

Application Received: 20070116 Characterization Received: 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. Served honorably, one time incident.
                           2. Violated by shipmates caused increased drinking and subsequent bad judgement.


Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall M ISCONDUCT - D RUG ABUSE (U SE ) .

Date: 20 071002                                     Location: Washington D.C.

Discussion

Issue 1 ( ): The Applicant states that her discharge was based on one isolated incident. Despite a servicem ember’s prior record of service certain serious offenses warrant separation from the n aval service in order to maintain proper order and discipline. The record documents the Applicant ’s in- service use of illegal drug s (which is the basis for her discharge). The Applicant waived her right to an administrative board and did not dispute her discharge or the characterization. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.

Issue 2 (Equity): The Applicant contends that she was violated by shipmates which resulted in subsequent increased drinking and bad judgment. 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 h er claim. There is no evidence in the record, nor has the Applicant produced any evidence, to support her argument . To the contrary the record contains the Applicant’s possitive drug screening, admission of amphetamines and marijuana use, her desire to be released from active duty and her refusal to participate in drug rehabilitation. Even if the Applicant could document her claim this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Violations of UCMJ 112a are considered the commission of a serious offense; specifically this offense carries a maximum penalty of a Dishonorable Discharge and up to 5 years of imprisonment. The Applicant’s conduct, which forms the primary basis for determining the characterization of service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade. Relief denied.

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19900209 - 19900411              Active:
Period of Service Under Review:
Date of Enlistment: 19900412      Years Contracted :                 Date of Discharge: 19920221
Length of Service : 01 Yrs 10 Mths 09 D ys                   Lost Time : Days UA: 1
Education Level:         Age at Enlistment: 19     AFQT: 41          Highest Rank /Rate : FA
Evaluation marks (# of occasions):       Performance: 3.4                   Behavior: 3.2              OTA: 3.6 (2)
Awards and Decorations ( per DD 214): SOUTHWEST ASIA SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, NAVY UNIT COMMENDATION

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

19911212 :        NJP - Viol UCMJ Art. 86 ( Unauthorized absence ) from 0700, 19911124 until 0700, 19911125 ; V iol UCMJ Art. 112a (wrongful use of a controlled substance, amphetamine ) on 19911126.
         Awarded - FOP ( $ 376.00 for 2 months); RIR ( E-1 ); Restr ( 45 days); Extra duties ( 45 days) .

19911216:        Drug and Alcohol Abuse Report: Applicant found not dependent, not amenable, recommendation for separation not via VA hospital. MBR told both DAPA and Medical Officer that she will not accept treatment of any kind and that she wants out of the Navy.

Discharge Process

Date Notified:                                       19911230
Reason for Discharge:     -

Least Favorable Characterization:        OTHER THAN HONORABLE

Date Applicant Responded to Notification:                  19920112
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        OTHER THAN HONORABLE ( 19920210 )
Separation Authority (date):     BUPERS WASHINGTON DC ( 19920218 )
Reason for discharge directed: -
Characterization directed:      OTHER THAN HONORABLE
Date Applicant Discharged:       19920221

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. 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 , .

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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NAVY | DRB | 2007_Navy | ND0700282

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