Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700577
Original file (ND0700577.rtf) Auto-classification: Denied
ex-AA, USN
ND07-00577
Current Discharge and Applicant’s Request
Application Received: 20070330   Characterization Received:
Narrative Reason: MISCONDUCT DUE TO DRUG ABUSE Authority: MILPERSMAN 1910-146

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:      1. Applicant states he was told he could upgrade his characterization within 6 months of discharge.
                           2. Post-service - Equity

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT DUE TO DRUG ABUSE .
Date: 20 071129 Location: Washington D.C         R epresentation :

Discussion

Issue(s) 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 ( ): 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, 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 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: USNR (DEP)     20001118 - 20001204     USNR (DEP)       20010117 - 20010 1 29      Active:
Period of Service Under Review:
 Date of Enlistment: 20010130               Years Contracted :        Date of Discharge: 20010831
Length of Service: 00 Yrs 07 Mths 02 D ys         Lost Time: Days UA: Days Confined:
Education Level:         Age at Enlistment:       AFQT: 64          Highest Rank/Rate: AN
Evaluation marks (# of occasions):       Performance: 2.0 ( 1 ) Behavior: 1.0 ( 1 ) OTA: 2.00
Awards and Decorations (per DD 214): NONE


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

 20010719 :         NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20010716, tested positive for cocaine.

20010725:        NJP -- Viol UCMJ Art. 86 - Absence without leave (3 days, 23 hours, 45 minutes/surrendered), Art. 112a - Wrongful use of cocaine.
         Awarded - FOP ($584.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).
Discharge Process

 Date Notified:                                       20010801
Reason for Discharge:    -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                 20010801
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      
         GCMCA review                               

Commanding Officer Recommendation (date):        ( UNDATED )
Separation Authority (date):     COMCARGRU TWO ( 20010822 )
Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       20010831

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 33, effective 16 July 2001 until 21 August 2002,
Article 1910-146 (formerly 3630620), 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 , 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, 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

Similar Decisions

  • NAVY | DRB | 2007_Navy | ND0700707

    Original file (ND0700707.doc) Auto-classification: Denied

    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. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the...

  • NAVY | DRB | 2007_Navy | ND0700487

    Original file (ND0700487.rtf) Auto-classification: Denied

    Without this additional documentation, and evidence of other post service endeavors, (i.e., evidence of continuing educational pursuits, 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 that resulted in the characterization of discharge.In reviewing discharges, the Board presumes regularity in the conduct of...

  • NAVY | DRB | 2007_Navy | ND0701003

    Original file (ND0701003.rtf) Auto-classification: Denied

    Discharge Process Date Notified: 20010720Reason for Discharge:--Least Favorable Characterization: Date Applicant Responded to Notification:20010720Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Administrative Board Date : NONE Findings, by preponderance of the evidence: Recommendation on Separation: Recommendation on Characterization: Commanding Officer Recommendation (date): (20010825) Separation Authority...

  • USMC | DRB | 2007_Marine | MD0700710

    Original file (MD0700710.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 ServicePrior Service: Inactive: USMCR (DEP) 19980811 - 19980909 Period of Service Under Review: Date of Enlistment: 19980910 Years Contracted:4; Extension: Date of Discharge: 20010831Length of Service: 02 Yrs 11 Mths 22 DysLost Time:Days UA: Days Confined: Education...

  • NAVY | DRB | 2009_Navy | ND0900201

    Original file (ND0900201.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Besides the Applicant DD Form 293, no documentation was provided for further review. After a thorough review of the available evidence, to...

  • NAVY | DRB | 2011_Navy | ND1102017

    Original file (ND1102017.rtf) Auto-classification: Denied

    Relief denied.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 .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • USMC | DRB | 2008_Marine | MD0801065

    Original file (MD0801065.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...

  • NAVY | DRB | 2008_Navy | ND0801095

    Original file (ND0801095.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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM:...

  • NAVY | DRB | 2008_Navy | ND0800311

    Original file (ND0800311.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 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. Additionally, the NDRB does not have the authority to change a narrative reason for...

  • NAVY | DRB | 2008_Navy | ND0800043

    Original file (ND0800043.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 Pertinent Regulation/Law A. ” 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. Additionally, the Board has no authority...