Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0700550

Original file (ND0700550.rtf) Auto-classification: Denied

ex-ABEAR, USN
ND07-00550

Current Discharge and Applicant’s Request

Application Received: 20070316 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MILPERSMAN CAG 11 LTR 1910 SER NOOJ/ 146 OF 06 APR 05

Applicant’s Request:      Characterization change to:
                           Narrative Reason change : None Requested

Applicant’s Issues:       1. Wish to enlist in Army
                           2. Did not use drugs.
                           3. Post Service – No trouble since out of Navy and completed A/C and Heating Certification

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

Date: 20 071120             Location: Washington D.C          R epresentation :

Discussion

Issue : 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 claims that he never used drugs only accepted the plea on the advice of counsel. The record documents the Applicant’s sworn testimony and written confession to using illegal drugs on three occasions while in the U. S. Navy. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a d ishonorable d isc harge and up to 5 year s of imprisonment if adjudicated by a court martial. In t he Applicant ’s plea bargain, he agreed to waive h is right to an administrative board and admit to the drug charges in an effort to escape a S pecial Court Martial . Subsequent ly the Applicant was found guilty at Summary Court Martial , his Commanding Officer recommended a other than honorable discharge and the discharge authority directed the Applicant’s discharge after ensuring compliance with MILPERSMAN 1910-146. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of disciplin e in the United States Navy. A “ under other than honorable conditions” characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.

Issue 3 ( ): The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, 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 the civilian life subsequent to leaving the servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided a statement in his letter to the board t hat he has had no criminal activity since being discharged from the navy and a certificate of completion from San Diego Community College as doc umentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of his drug fee lifestyle , a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and the characterization of his service .

In reviewing discharges, the Board presumes 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: US N R (DEP)      20010 316 - 20010722              Active:
Period of Service Under Review:
Date of Enlistment: 20010723               Years Contracted : ;                Date of Discharge: 20050413
Length of Service : 03 Yrs 08 Mths 21 D ys                            Lost Time : Days Confine d :
Education Level:         Age at Enlistment:       AFQT: Unreadable          Highest Rank /Rate : ABE3
Evaluation marks (# of occasions):       Performance: 4.0 ( 1 )       Behavior: 3.0 ( 1 )                   OTA: 3.29 (1)
Awards and Decorations ( per DD 214): NUC, NER, GCM, NDSM, GWOTSM, GWOTEM, SSDR

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

20050223          S ummary C ourt M artial - Viol UCMJ Art. 112a (2 specs, w rongful ly distribute approximately one-eighth of an ounce of methamphetamine and w rongfully use methamphetamine ) . Applicant plead guilty to using charge, found guilty of both charges.
         Applicant testified that he had used methamphetamines during April, May and July of 2004.
         Awarded - FOP ( $ 824.00 for 1 m onth); RIR ( E-1 ); Confinement ( 30 d ays) .
         CA Action: Sentence approved and ordered executed. 20050312

Discharge Process

Date Notified:                                       20050223
Reason for Discharge:     -
Least Favorable Characterization:

Date Applicant Responded to Notification:                  20050223
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board

Commanding Officer Recommendation (date):        ( 20050401 )
Separation Authority (date):     COMMANDER, CARRIER STRIKE GROUP ELEVEN ( 20050406 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20050406

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), re-issued October 2002, effective 22 August2002 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 .

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 | 2007_Navy | ND0700600

Original file (ND0700600.rtf) Auto-classification: Denied

The Board determined that the documentation provided by the Applicant did not mitigate 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. Discharge Process Date Notified: 20050406Reason for Discharge: - Least Favorable Characterization: Date Applicant Responded to...
USMC | DRB | 2007_Marine | MD0700568

Original file (MD0700568.rtf) Auto-classification: Denied

Summary of Service Prior Service: Inactive: USMCR (DEP)19991008 - 19991128Active: 19991129 - 20031001 Period of Service Under Review: Date of Enlistment: 20031002Years Contracted:; Extension: Date of Discharge:20050713Length of Service: 01 Yrs 09Mths11 DysLost Time:Days UA: Days Confined: Education Level: Age at Enlistment:AFQT: 36MOS:0811Highest Rank: Proficiency/Conduct marks (# of occasions):Fitness reports: Awards and Decorations (per DD 214):GCM, GWOTSM, NDSM, SSDR, NUC, KCM, NATO,...
NAVY | DRB | 2006_Navy | ND0600669

Original file (ND0600669.rtf) Auto-classification: Denied

The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). No indication of appeal in the record.050110: Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct due to drug abuse.050110: Applicant advised of rights and having consulted with counsel, elected to waive all...
NAVY | DRB | 2007_Navy | ND0700416

Original file (ND0700416.rtf) Auto-classification: Denied

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 (DEP)20050408 - 20050728Active: Period of Service Under Review: Date of Enlistment: 20050729Years Contracted:; Extension: Date of Discharge:20060310Length of Service: 00 Yrs 07Mths12 DysLost Time:Days UA: Days Confined: Education...
NAVY | DRB | 2006_Navy | ND0600965

Original file (ND0600965.rtf) Auto-classification: Denied

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation 20040729: Medical evaluation found applicant not dependent on drugs or alcohol. Elements of Discharge: Discharge Process: ADMINISTRATIVE BOARD PROCEDUREDate Notified:20040429Reason(s): MISCONDUCT DUE TO Least Favorable Characterization: Record Supports Narrative Reason: Date Applicant Responded to Notification: 20040504Rights Elected at Notification:Consult with Counsel Administrative...
NAVY | DRB | 2012_Navy | ND1200475

Original file (ND1200475.rtf) Auto-classification: Denied

” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. Additionally, the NDRB 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...
NAVY | DRB | 2009_Navy | ND0900971

Original file (ND0900971.doc) Auto-classification: Denied

ex-STSN, USN Current Discharge and Applicant’s Request Application Received: 20090310 Characterization of Service Received: Narrative Reason for Discharge: Authority for Discharge: MILPERSMAN Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP) 19990713 - 20000326 Active: 20000327 – 20030516 HON Period of Service Under Review: Date of Enlistment: 20030517 Age at Enlistment: Period of Enlistment: Years...
NAVY | DRB | 2010_Navy | ND1001909

Original file (ND1001909.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. After a careful review of...
NAVY | DRB | 2014_Navy | ND1401511

Original file (ND1401511.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ” Additional Reviews : After a document review has been conducted, former members are eligible for a...
NAVY | DRB | 2007_Navy | ND0701009

Original file (ND0701009.rtf) Auto-classification: Denied

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 Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: “ MISCONDUCT (DRUG ABUSE) ” The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. ” Additional...

Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700550

Similar Decisions