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NAVY | DRB | 2007_Navy | ND0700829
Original file (ND0700829.rtf) Auto-classification: Denied
ex-SMSN, USN
ND07-00829

Current Discharge and Applicant’s Request
Application Received: 20070531                              Characterization Received: OTHER THAN HONORABLE
Narrative Reason: MISCONDUCT – DRUG ABUSE        Authority: MILPERSMAN 3610240

 Applicant’s Request:      Characterization change to:
                           Narrative Rea son change :

Applicant’s Issues:       1. Eligibility for benefits
                           2. Based on an isolated incident during enlistment extension.


Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 071220             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 Applicant stated that his discharge was based on one isolated incident . Although this may have been the action which forced the command to process the Applicant for administrative discharge he was processed properly for both misconduct due to the commission of a serious offense and misconduct due to drug abuse. T he summary of service clearly documents the Applicant ’s three NJPs for violations of UCMJ Article s 86 (unauthorized absence), 91 (disobey a lawful order), 107 (false official statement), and 112a (wrongful use of a controlled substance) . Each violation of Articles 91, 107 and 112a constitutes the “co mmission of a serious offense” which is punishable by a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a Courts Martial. The commission of a serious offense is the actual basis for discharge in this case. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the n aval service in order to maintain proper order and discipline . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in the characterization of service.

In reviewing discharges, the Board presume s 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


Administrative Corrections to the Applicant’s DD 214

 The NDR B did note administrative error s on the original DD Form 214 :

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT ”
         Block 25, Separation Authority, should read: “MILPERSMAN 363060 0 ”

The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.


Summary of Service

Prior Service:
 Inactive: US N R (DEP) 19890424 - 19890425                
Period of Service Under Review:
 Date of Enlistment: 19890426      Years Contracted : 4 ; Extension:          Date of Discharge: 19940111
Length of Service : 04 Yrs 08 Mths 16 D ys          Lost Time : Days UA: 18+ (unable to determine precisely)
Education Level: GED      Age at Enlistment: 20     AFQT: 55          Highest Rank /Rate : SM3
Evaluation marks (# of occasions):       Performance: 3.7 ( 6 )      Behavior: 3.7 ( 6 )         OTA: 3.70 (6)
Awards and Decorations ( per DD 214): MUC, NDSM, SWASM, Battle “E” Ribbon, SSDR


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

 19890525:        Drug and alcohol abuse report, as result of positive test for THC on entry urinalysis. Not dependent, Level I treatment and retention.
19890930:        Applicant reported for duty aboard USS MIDWAY (CV-41), Yokosuka Japan.

19900727:        Applicant unauthorized absence from place of duty at 1150 and 1345.

19900728:        Applicant unauthorized absence from place of duty at 1800.
19900729:        Applicant to unauthorized absence at 0730.

19900730:        Applicant from unauthorized absence at 0800 (1 day, surrendered).
19900809:        NJP - Viol UCMJ Art icle 86 (unauthorized absence, 4 specifications) and Article 91 (disobey a lawful order) .
          Awarded - FOP ($ 300 for one month ); RIR ( E-1, suspended for six months ); Extra duties ( 30 days).
199 1 1009:        Applicant reported for duty aboard USS MOBILE BAY (CG 53), Yokosuka Japan.

19930408:        NJP - Viol UCMJ Article 107 (false official statement) -       .
         Awarded - FOP ($ 250/month for 2 months); RIR ( E-3, suspended for six months ).
19930414:        Applicant unauthorized absence from 0730 until 0830.

19931105:        Applicant reported for duty aboard USS PHILIPPINE SEA (CG 58), Mayport Florida.
19931203:        NJP - Viol UCMJ Article 112a (wrongful use/possession of a controlled substance, marijuana) .
         Awarded - FOP ($ 500/month for 5 months); RIR ( E-3) .

19931217:        Applicant to unauthorized absence at 0730 .

19940104:        Applicant from unauthorized absence at 0815 (17 days , surrendered ).


Discharge Process

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

Date Applicant Responded to Notification:                  undated
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Commanding Officer Recommendation (date):        ( 19940107 )
 Separation Authority (date):     BUPERS ( 19940110 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19940111


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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 s of UCMJ, Article s 91, 107, and 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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