Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0800557

Original file (ND0800557.rtf) Auto-classification: Denied

ex-MSSA, USN

Current Discharge and Applicant’s Request

Application Received: 20080118

Characterization of Service Received:

Narrative Reason for Discharge: (DRUG ABUSE)

Authority for Discharge: BUPERS WASHINGTON DC MSG 021834Z MAY 94 (DRUG ABUSE)

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19910424 - 19910602              Active:
Period of Service Under Review:
Date of Enlistment: 19910603      Period of enlistment : Years Extension          Date of Discharge: 19940506
Length of Service : Yrs Mths 04 D ys      Education Level:         Age at Enlistment:       AFQT: 33
Highest Rank /Rate : MS3    Evaluation marks: Performance: 3.6 ( 5 )     Behavior: 3.8 ( 5 )          OTA: 3.72
Awards and Decorations ( per DD 214):

Periods of UA /C ONF : 19940402-19940405 (3 days)/

NJPs :
         19930718 : Art 91 (Disrespectful language),
Art 121 (Larceny) .
         Awarded - Susp -
         19930815 : Art 86 (Failed to go to appointed place of duty) , 3-specifications.
Awarded - Susp -
         19930830 : Art 86 (Failed to go to appointed place of duty) , 3-specifications.
Awarded - Susp -
         19940415 : Art(s) .
         Awarded - Susp -

C C :
         19930228 : Offense: Defective lights, no valid driver's license . Sentence - Fined $45.00 plus $33.00 court cost .

Retention Warnings: .
         19910604 : For defective enlistment and induction due to fraudulent entry into naval service as evidence by your failure to disclosed your preservice civil involvement/drug abuse .
         19930719: For disrespectful in language toward a senior chief petty officer and larceny.

Pending Charges: 1
         19940420: For driving under the influence, driving on the wrong side of the highway and expired inspection sticker.

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 Representat ion :              From Member of Congress:
Other Documentation (Describe)

         - Letter from case worker dated 28 December 2005 to Judge O’Hara concerning drug and alcohol use and completion of Cognitive Alcohol and Drug Education Services to reinstate driving privileges.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ MILPERSMAN 3630620 ”

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

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

Applicant’s Issues

1. Has changed; wife and 3 kids shouldn’t have to suffer for his bad decisions.
2. Post service conduct .

Decision

Date: 20 08 0523 Location: Washington D.C R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (DRUG ABUSE) .

Discussion

: ( ) RELIEF NOT WARRANTED . The Applicant contends his characterization of discharge should be upgraded because he is not the same person and his family should not have to suffer because of bad decisions he made 13 years ago. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of discharge if such a change is warrante d. A general (under honorable conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service. The Applicant’s service was marred by 4 non - judicial punishments for violations of the Uniform Code of Military Justice, Articles 86, 91 and 112a. Additionally, the Applicant received 2 retention warnings : one for fraudulent entry into the service for failing to disclose pre-service involvement with civil authorities and drug abuse; and one for disrespectful language towards a senior chief petty officer and larceny. At the time of discharge, the Applicant was also pending civilian charges for driving under the influence , driving on the wrong side of the highway and driving with an expired inspection sticker. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Therefore, r elief is not warranted.

: () . The Applicant contends his discharge should be upgraded based on post service accomplishments. The record reflects that he received counseling for his alcohol and drug problems and provided a letter from his case manager of 28 December 2005, indicating he successfully completed a 12 –week program with Cognitive Alcohol and Drug Education services in 1994. He has abstained from using drugs and alcohol since 1 January 2003. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge. The Board found the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent rehabilitative success to date. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct and the evidence of post-service conduct was not sufficient to convince the Board an upgrade was appropriate at this time. Therefore, the Board determined relief is not warranted.

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

Pertinent Regulation/Law

A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 5 March 1993 until 21 July 1994,
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 91, Disrespectful language , and Article 112a;Drug abuse .

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 other medical related reasons. 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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NAVY | DRB | 2008_Navy | ND0800557

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