Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700725
Original file (ND0700725.rtf) Auto-classification: Denied
ex-FR, USN
ND07-00725
Current Discharge and Applicant’s Request
Application Received: 20070507   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MILPERSMAN 3630620

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Enhance law enforcement employment opportunities
                           2. Characterization not warranted by overall service record
                           3. Post-service conduct

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 071205             Location: Washington D.C         R epresentation :

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 NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by the finding at a nonjudicial punishment (NJP) proceeding on 19950214 by a violation of UCMJ Article 112a, Wrongful use of a controlled substance. Although discharge for one violation of the UCMJ may seem harsh, that violation was for abuse of a controlled substance. Individuals are indoctrinated from the day of recruitment , and have had the policy reinforced through annual Navy-wide training sessions throughout their enlistment , on the U.S Navy’s zero tolerance policy for substance abuse and that a violation of this policy will result in mandatory processing for administrative separation which usually results in an unfavorable characterization of discharge. This policy is well known throughout both the Department of Defense and the civilian sector as well. The Board found no evidence to indicate that the Applicant was not responsible for his behavior. The Applicant received a more favorable characterization of service than that normally assigned for discharges based on drug abuse. An upgrade to honorable would be inappropriate.

Issue 3 ( ). 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 could 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.

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: US N R (DEP)      19940131 - 19940209              Active:         
Period of Service Under Review:
 Date of Enlistment: 19940210      Years Contracted : ; Extension:   Date of Discharge: 19950609
Length of Service : 01 Yrs 04 Mths 00 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 77          Highest Rank /Rate : FA
Evaluation marks (# of occasions):       Performance: 3.2 ( 2 )       Behavior: 2.4 ( 2 )                  OTA: 3.3
Awards and Decorations ( per DD 214): NDSM

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

 19950213 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 19950206 , tested positive for ( THC ).

 19950214 :        NJP -- Viol UCMJ Art. 112a – Wrongful use of controlled substance (marijuana) .
         Awarded - FOP ( $ 427.00 ) for ( 2 months); RIR ( E-1 ); Restr for ( 45 days); Extra duties ( 45 days) .
19950408:        Applicant apprehended by military police for brandishing butterfly knife at another passenger onboard a bus.
19950412:        DAAR Report: Abuse, marijuana, 1-3 times per month, ashore-off duty, not dependent, Medical Officer recommended disposition – separate from service not via VA hospital.

Discharge Process

 Date Notified:                                       19950223
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19950413
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       

Administrative Board Date :       19950413
Findings, by preponderance of the evidence:     BY 3-0 VOTE - .
          BY 3-0 VOTE SEPARATION WARRANTED.
 Recommendation on Separation:   BY 3-0 VOTE
Recommendation on Characterization:     BY 3-0 VOTE

Commanding Officer Recommendation (date):        ( 19950418 )
Separation Authority (date):     BUPERS ( 19950526 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19950609

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, possession, etc., of controlled substances .

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 | ND0700693

    Original file (ND0700693.rtf) Auto-classification: Denied

    The Board has taken into consideration the letters written by the Applicant’s pastor and Dr. Mike Landry, and made a determination that as of this time, the Applicant has not provided sufficient documentation of a post-service nature to warrant an upgrade in 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...

  • USMC | DRB | 2008_Marine | MD0800969

    Original file (MD0800969.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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...

  • USMC | DRB | 2008_Marine | MD0800790

    Original file (MD0800790.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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) DD Form 214 from Army National Guard DEPARTMENT OF THE NAVYNAVAL...

  • USMC | DRB | 2008_Marine | MD0800244

    Original file (MD0800244.rtf) Auto-classification: Denied

    Drop code FAJ 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...

  • NAVY | DRB | 2007_Navy | ND0700473

    Original file (ND0700473.rtf) Auto-classification: Denied

    The NDRB found that the Applicant's service was equitably characterized.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. ” 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....

  • NAVY | DRB | 2007_Navy | ND0700082

    Original file (ND0700082.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Date Notified:19950424Reason for Discharge - Least Favorable Characterization Authorized: Date Applicant Responded to Notification: 19950424Rights Elected at Notification:Consult with Counsel Obtain Copies of DocumentsSubmit Statement(s) (date)Administrative Board GCMCA Review Commanding Officer Recommendation (date): (19950504)Separation Authority (date):BUPERS WASHINGTON DC (19950518)Reason for discharge directed: - Characterization directed: Date...

  • NAVY | DRB | 2007_Navy | ND0700623

    Original file (ND0700623.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change: Applicant’s Issues: 1. 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 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...

  • USMC | DRB | 2007_Marine | MD0700934

    Original file (MD0700934.rtf) Auto-classification: Denied

    Date:20080103Location:Washington D.C.Representation: 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’s service was marred by one discharge warning and one nonjudicial punishment for a violation of UCMJ Article 112a. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing,...

  • NAVY | DRB | 2008_Navy | ND0800982

    Original file (ND0800982.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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) Administrative Corrections to the Applicant’s DD 214The NDRB did note...

  • NAVY | DRB | 2008_Navy | ND0801936

    Original file (ND0801936.rtf) Auto-classification: Denied

    Service/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 Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant is advised that completion of these...