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NAVY | DRB | 2008_Navy | ND0800159
Original file (ND0800159.rtf) Auto-classification: Denied
                  Docket No. ND08-00159

ex-IT3, USN
Current Discharge and Applicant’s Request
Application Received: 20071106
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19990310 -19999321               Active: 199205-1995
Period of Service Under Review:
 Date of Enlistment: 19990322     Period of enlistment : Years Extension  Date of Discharge: 20020528
Length of Service: Yrs Mths 07 D ys     Education Level:         Age at Enlistment:       AFQT: 63
 Highest Rank/Rate: E-4   Evaluation marks: Performance: 3.50(6)   Behavior: 3.17(6)        OTA: 3.09
Awards and Decorations (per DD 214): Rifle Pistol (2), ASR, ALB,OSR, FLOC

 Periods of UA/CONF:

NJPs:   

SCMs:   

SPCMs:  

CC:     

Retention Warnings: .

 COMMAND INVESTIGATION 20020220
         Investigation of drug use – mbr went to a bar with his shipmate, where they got intoxicated and left in a car with an unknown female who used and offered them cocaine; the member admitted to using the cocaine. The shipmate requested that they let him out of the car, and he got a ride back to the base; the member went to the female’s house, he engaged in oral sex and returned to the base the next day.


Types of Documents Submitted

 Related 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) CDL license, local business tax receipt, filing of fictitious name

                  Docket No. ND08-00159

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Seeking employment with police or fire department
2. Post service

Decision

Date: 20080221            Location: Washington D.C         R epresentation :

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

 : which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum for additional information regarding Employment/Educational Opportunities .

Issue 2 ( ). The Applicant contends that his characterization of discharge should be upgraded because he was a very accomplished Sailor with a couple of minor incidents and has several post service accomplishments. Based on a review of the record and evidence presented by the Applicant, the board has determined that his general discharge was proper and equitable. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented in a command investigation, wherein he admitted to getting intoxicated, then getting into the vehicle of a strange woman and using cocaine after completing alcohol treatment. He acknowledged and waived his rights to consult with counsel and administrative review. The Applicant was afforded the appropriate due process during the processing of his case. The NDRB found that the aggravating factors in this case outweighed any mitigating and extenuating factors either presented by the Applicant or contained in his record. Aggravating facts noted by the Board included use of alcohol and drugs and exposing one’s shipmate to the same. An upgrade of the Applicant's discharge to an honorable characterization is not warranted despite his post service accomplishments.

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

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 Mar 2000 until 21 Aug 2002, Article 1910-152 (formerly Article 3630550), SEPARATION BY REASON OF ALCOHOL ABUSE REHABILITATION

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 .


                  Docket No. ND08-00159
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

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