Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0701099

Original file (ND0701099.rtf) Auto-classification: Denied

ex-HTFN, USN
ND07-01099

Current Discharge and Applicant’s Request

Application Received: 20070807 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MILPERSMAN 1910-146

Applicant’s Request:      Characterization change to:
                           Narrative Re ason change :

Applicant’s Issues:       1. Father was extremely ill, given only 30% chance of living.


Decision

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

Date: 20 08 0117             Location: Washington D.C         R epresentation :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

         “ MISCONDUCT (DRUG ABUSE) ”

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

Discussion

Issue 1 ( ): The Applicant contends that his discharge was inequitable because of his depression resulting from his father’s illness. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h is claim . There is no evidence in the record, nor has the Applicant produ ced any evidence, to support his contention of depression. However, even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s misconduct. S eparation processing is mandatory for Sailors who abuse illegal drugs . T he separation code (entered on block 26 of the DD-214) indicates that the Applicant waived h is right to an administrative board . Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a dishonorable disc harge and up to 5 year s of imprisonment if adjudicated by a court martial. The evidence of record did not show that the Applicant was either not responsible for h is conduct or that he should not be held accountable for h is actions .

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 20030819 - 20040705
Period of Service Under Review:
Date of Enlistment: 20040706                        Years Contracted : 4                Date of Discharge: 20060123
Length of Service : 01 Yrs 06 Mths 18 D ys                                                                Lost Time :
Education Level:         Age at Enlistment: 18     AFQT: 42          Highest Rank /Rate : HTFA
Evaluation marks (# of occasions):       Performance: 2 . 5 ( 5 )      Behavior: 2 . 5 ( 5 )                 OTA: 2 . 29 ( 2 )
Awards and Decorations ( per DD 214): NDSM, SSDR, GWOTEM, GWOTSM, Combat Action Ribbon

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

20050103:        Applicant reported for duty aboard USS ASHLAND (LSD 48).

20060106:        NJP – Viol ation of UCMJ Art icle 92 (failure to obey).
         Awarded – 30 days restriction and extra duties.

20060106:        Retention Warning for Violation of UCMJ Article 92 (failure to obey).

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                        Separation Code on DD-214 indicated waived

Commanding Officer Recommendation (date):
Separation Authority (date):     Commander, Amphibious Group TWO ( 20060120 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       20060123

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 11, effective 29 April 2005 until Present, 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 | 2009_Navy | ND0900125

Original file (ND0900125.rtf) Auto-classification: Denied

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: 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...
NAVY | DRB | 2008_Navy | ND0800148

Original file (ND0800148.rtf) Auto-classification: Denied

Awarded – RIR and RESTR 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...
NAVY | DRB | 2015_Navy | ND1500310

Original file (ND1500310.rtf) Auto-classification: Denied

Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of...
USMC | DRB | 2007_Marine | MD0700239

Original file (MD0700239.rtf) Auto-classification: Denied

The Board found that Issue(s)1-2: The Board determined that these Issue(s) are not issue(s) which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned. The Applicant’s service was marred by three discharge warnings and two nonjudicial punishments for violating the UCMJ Article(s) 86 Unauthorized absence, 92 Failure to obey order, regulation, 107 False official statements, and 134 Indecent...
NAVY | DRB | 2009_Navy | ND0901541

Original file (ND0901541.rtf) Auto-classification: Denied

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.The Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety.The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning andspecial...
NAVY | DRB | 2007_Navy | ND0700763

Original file (ND0700763.rtf) Auto-classification: Denied

Each violation of UCMJ Article 91 and 92constitutes the “commission of a serious offense” which forms the basis for the Applicant’s discharge and is punishable by a dishonorable discharge and up to three years of imprisonment for each specification. Discharge Process Date Notified: 20060206Reason for Discharge:-Least Favorable Characterization: Date Applicant Responded to Notification:20060206 Rights Elected at Notification: Consult with Counsel Obtain Copies of Documents Submit...
USMC | DRB | 2009_Marine | MD0901154

Original file (MD0901154.rtf) Auto-classification: Denied

Furthermore, the NDRB found documentation that the Applicant withheld pertinent information with regards to his pre-service history of anxiety and additional drug usage besides marijuana upon enlistment.In verifying the Applicant’s PTSD, the NDRB found in the Applicant’s PDHA of 27 September 2005, that there was nothing noted by the Applicant or the Health Care Provider to suggest a referral or an additional follow-up appointment was required. ” Additional Reviews : After a document review...
NAVY | DRB | 2010_Navy | ND1000530

Original file (ND1000530.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. Outstanding post-service...
USMC | DRB | 2010_Marine | MD1001437

Original file (MD1001437.rtf) Auto-classification: Denied

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. ” 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. Reenlistment/RE-code : Since the NDRB has no jurisdiction...
NAVY | DRB | 2008_Navy | ND0800353

Original file (ND0800353.rtf) Auto-classification: Denied

Narrative Reason Change Decision Date: 20080314Location: Washington D.C Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall IN LIEU OF TRIAL BY COURT MARTIAL.Discussion Issue 1: The Applicant implies that he was treated unfairly by his command due to his Conscientious Objector request not being favorably considered. An upgrade to General under honorable conditions would be inappropriate.After a thorough review of the available evidence, to...

Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0701099

Similar Decisions