Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700373
Original file (ND0700373.rtf) Auto-classification: Denied
ex-ATAN, USN
ND07-00373
Current Discharge and Applicant’s Request
Application Received: 20070131   Characterization Received:
Narrative Reason: MISCONDUCT Authority: MILPERSMAN 3630620

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Post service - Equity
                          
Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 07 1025 Location: Washington D.C. The Board found that

Discussion

 Issue 1 ( ) : 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 any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. Relief is not warranted.

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      10090531 - 19900822              Active:         
Period of Service Under Review:
 Date of Enlistment: 19900823      Years Contracted : 4 ; Extension:         Date of Discharge: 19941215
Length of Service : 4 Yrs 3 Mths 23 D ys    Lost Time : Days UA: Days Confine d :
Education Level: 12       Age at Enlistment: 20     AFQT: 29          Highest Rank /Rate : AT3
Evaluation marks (# of occasions):       Performance: 3.7 ( 4 )       Behavior: 3.65 ( 4 )         OTA: 3.65
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL (W/1 BRONZE STAR)

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

 19940428:        Message from COMNAVPERSCOM indicating that Applicant had been retained because his admin board of 19940301 found that he had not committed misconduct due to drug abuse .
19940523 :         NAVDRUGLAB, Norfolk, VA reported Applicant’s urine sample, received 19940517, tested positive for (THC).
19940613:        Applicant unauthorized absence from 0700, 19940613 to 0700, 19940614 (24 hours/surrendered).
19940628 :        NJP -- Viol UCMJ Art. 112 a (2 specs)--Use of a THC and Cocaine
         Awarded - FOP ( 1/2 month pay ) for ( 2 months); RIR ( E-2 ); Extra duties (45 days) .

Discharge Process

 Date Notified:                                       19940808
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19941208
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ( NOT FOUND IN RECORD )
          Administrative Board                       
         GCMCA review                               

Administrative Board Date :       19941011
Findings, by preponderance of the evidence:     BY - .
          BY SEPARATION WARRANTED.
Recommendation on Separation:   BY 19941011
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 19941019 )
Separation Authority (date):     COMNAVPERSCOM ( 19941123 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19941215

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), Change 9/94, effective 22 Jul 94 until 02 Oct 96, 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 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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0800349

    Original file (ND0800349.rtf) Auto-classification: Denied

    Automatic upgrade Decision Date: 20080306Location: Washington D.C Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall MISCONDUCT.Discussion : 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 Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a...

  • NAVY | DRB | 2007_Navy | ND0701070

    Original file (ND0701070.rtf) Auto-classification: Denied

    Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.

  • USMC | DRB | 2007_Marine | MD0700067

    Original file (MD0700067.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Date Notified: 19940831Basis for Discharge: due to: Least Favorable Characterization: Commanding Officer’s Intended Recommendation: Date Applicant Responded to Notification: 19940902 Rights Elected at Notification:Consult with Counsel Obtain Copies of DocumentsSubmit Statement(s) (date) Administrative Board (19941011)Commanding Officer Recommendation (date): (19940902)SJA review (date): (19941114)Separation Authority (date): COMMANDING GENERAL, 3D MARINE...

  • NAVY | DRB | 2007_Navy | ND0701121

    Original file (ND0701121.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change: MERCY, CLEMENCY Applicant’s Issues: 1. 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. Additionally, the NDRB does not have the authority to change a...

  • NAVY | DRB | 2011_Navy | ND1100517

    Original file (ND1100517.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Summary: After a thorough...

  • NAVY | DRB | 2010_Navy | ND1000211

    Original file (ND1000211.rtf) Auto-classification: Denied

    Although the Applicant’s characterization was upgraded to Under Other Than Honorable Conditions at his document review, his case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. Since the Applicant had no documented misconduct or counseling warnings prior to his SPCM, had significant substance abuse prior to entry, and most of his mental health issues were diagnosed post-service, the NDRB determined the Applicant’s...

  • NAVY | DRB | 2007_Navy | ND0700757

    Original file (ND0700757.rtf) Auto-classification: Denied

    Based on the Applicant’s service conduct and performance, the NDRB concluded that there was an inequity in the Applicant’s discharge characterization and directs the characterization of service be changed to Honorable. 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: USNR...

  • NAVY | DRB | 2006_Navy | ND0601171

    Original file (ND0601171.rtf) Auto-classification: Denied

    Commanding Officer Recommendation (date): 20050913Separation Authority (date):COMNAVPERSCOM (20051005)Narrative reason directed:Characterization directed: Date Applicant Discharged: 20051012 Additional Information Considered by Board Type of documentation submitted by the Applicant and considered by the Board Document Type #Pages Related to Period of Service Under Review:Service/Medical Record:03Other Period of Service: 13Related to Post-Service Period: Community...

  • USMC | DRB | 2008_Marine | MD0801077

    Original file (MD0801077.rtf) Auto-classification: Denied

    The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post service conduct mitigates the reason for the characterization of discharge. The Board determined an upgrade or change would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence...

  • NAVY | DRB | 2007_Navy | ND0700620

    Original file (ND0700620.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues:1.Isolated incident. Types of Documents Submitted by Applicant and Considered By BoardRelated 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: Additionally, the Board has...