Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700842
Original file (ND0700842.rtf) Auto-classification: Denied
ex-FA, USN
ND07-00842
Current Discharge and Applicant’s Request
Application Received: 20070606   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. Immature in Service
                          

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT DUE TO DRUG ABUSE .

Date: 20 071220                      Location: Washington D.C          R epresentation :

Discussion

 Issue 1: ( ). The Applicant contends that his problems were attributed to his immaturity. While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. There is credible evidence in the record that the Applicant used illegal drugs . The evidence of record does not demonstrate that the Applicant was not responsible for h is c onduct or that he should not be held accountable for h is actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A under other than honorable conditions discharge 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. C ertain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by one retention warning and three nonjudicial punishment s for a violation of U niform Code of Military Justice (U CMJ ), Article 86 (Unauthorized Absence), Article 92 (Failure to obey an order) and Article 112a ( Wrongful use of a controlled substance ). V iolation of Article s 92 and 112a are considered serious offense s for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.
T here 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 service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding 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 did not provide any documentation o f post-service accomplishments. The Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. With no documentation submitted by the Applicant that may have mitigate d his misconduct that resulted in the characterization of discharge , the Board determined and upgrade was inappropriate .

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)      19960223 - 19960325              Active:         
Period of Service Under Review:
 Date of Enlistment: 19960326      Years Contracted : ; Extension:   Date of Discharge: 20000323
Length of Service : 03 Yrs 11 Mths 27 D ys          Lost Time : Days UA: 1 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 46          Highest Rank /Rate : EM3
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A              OTA: N/A
Awards and Decorations ( per DD 214): NONE

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

 19980622:        Applicant to unauthorized absence at 0600.

19980623:        Applicant from unauthorized absence at 0600 (1 days/surrendered).
19980923:        NJP -- Viol UCMJ Art. 86 – Failure to go at the time prescribed to his appointed place of duty, viol UCMJ Art. 92 – Wrongfully drinking alcohol 12 hours prior to training.
         Awarded - FOP ($200.00) for (1 month); RIR (E-2) suspended for 6 months, Restr for (14 days); Extra duties (14 days).

 19980923:        Retention Warning for poor military performance, to wit: fail to go, failure to obey an order or regulation.

19991118:        NJP -- Viol UCMJ Art. 86 – Unauthorized absence 0700, 19991103 until 163 0 , 19991103.
         Awarded - RIR (E-3); Restr for (45 days); Extra duties (45 days).

20000214:        NJP -- Viol UCMJ Art. 112a – Wrongful use of a controlled substance on 20000119.
         Awarded - RIR (E-2); Restr for (45 days); Extra duties (45 days).

Discharge Process

 Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge:     -
        
Least Favorable Characterization:       

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

Commanding Officer Recommendation (date):       
Separation Authority (date):     NOT FOUND IN RECORD
Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       20000323







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 24, effective 20 May 99 until 26 March 2000, 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 s 92 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

Similar Decisions

  • NAVY | DRB | 2007_Navy | ND0700367

    Original file (ND0700367.rtf) Auto-classification: Denied

    The Applicant’s service was marred by 2 retention warnings, 6 nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 90 (willfully disobeying a superior commissioned officer), 91 (insubordinate conduct towards a master chief petty officer), 92 (failure to obey written regulation), 95 (resistance), 112 (drunk on duty), 112a (wrongful use of a controlled substance) and 134 (unlawful entry) of the UCMJ. The Applicant’s conduct, which forms the primary basis...

  • NAVY | DRB | 2007_Navy | ND0700862

    Original file (ND0700862.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. An upgrade to honorable would be inappropriateIn 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 | 2007_Marine | MD0700265

    Original file (MD0700265.rtf) Auto-classification: Denied

    19930423: NJP imposed and suspended on 19930409 for a period of 6 months vacated.19930803: CO's NJP -- Viol UCMJ Art. 19930824 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit Statement(s) (date) Administrative Board Commanding Officer Recommendation (date): (19930823) SJA review (date): (19930830) Separation Authority (date): COMMANDING GENERAL, 1 ST Marine Division (19930910) Basis for discharge directed: DUE TO: Characterization directed: Date...

  • NAVY | DRB | 2007_Navy | ND0700898

    Original file (ND0700898.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: “ 1910-134 ” The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. Recommendation on...

  • USMC | DRB | 2007_Marine | MD0701056

    Original file (MD0701056.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: “ UNDER OTHER THAN HONORABLE CONDITIONS ” “ MISCONDUCT”The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as...

  • USMC | DRB | 2007_Marine | MD0700658

    Original file (MD0700658.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) 20020821 - 20030126 Active: Period of Service Under Review: Date of Enlistment: 20030127Years Contracted: Date of Discharge: 20060704Length of Service: 03 Yrs 05Mths08 Dys Lost Time: Days UA: Days Confined: Education Level: Age...

  • USMC | DRB | 2007_Marine | MD0701142

    Original file (MD0701142.rtf) Auto-classification: Denied

    Young and immature DecisionBy a vote of the Characterization shall .By a vote of the Narrative Reason shall MISCONDUCT Date:20080117Location:Washington D.C.Representation: 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. Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge 19960510: MARCORSEPMAN 6105 counseling for...

  • USMC | DRB | 2007_Marine | MD0701118

    Original file (MD0701118.rtf) Auto-classification: Denied

    After a thorough review of the Applicant’s record, issues submitted, the standards of discipline, post service accomplishments, and time passed since the BCD, the Board determined that some degree of clemency was warranted. 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...

  • USMC | DRB | 2007_Marine | MD0700400

    Original file (MD0700400.rtf) Auto-classification: Denied

    Discussion Issue 1 (Clemency). After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined t that the sentence awarded the Applicant at his court-martial was appropriate for the offenses he committed and that clemency was not warranted.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...

  • NAVY | DRB | 2007_Navy | ND0700340

    Original file (ND0700340.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: “COURT-MARTIAL ” The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. ADDENDUM: Information for the...