Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0800593

Original file (ND0800593.rtf) Auto-classification: Denied

ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20080229

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 1920-130

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19911214 - 19920426              Active: 19920427 – 20050131 HON
Period of Service Under Review:
Date of Enlistment: 20050201      Period of enlistment : Years Extension          Date of Discharge: 20070517
Length of Service : Yrs Mths 16 D ys      Education Level:         Age at Enlistment:       AFQT: 56
Highest Rank /Rate : EN3    Evaluation marks: Performance: 3.0 ( 1 )     Behavior: 3.0 ( 1 )          OTA: 3.0
Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

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) Department of Veterans Affairs Certificate of Eligibility

Administrative Corrections to the Applicant’s DD 214

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

         “ 1920.B ”

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. Denies drug use; single incident in otherwise stellar career
2. Too many discrepancies in his case

Decision

Date: 20 08 0410 Location: Washington D.C R epresentation :

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

Discussion

Issue s 1 and 2 ( ). Relief not warranted. The Applicant contends his discharge should be upgraded because he did not knowingly use drugs . The Applicant is opined that one should not be given an OTH for a single incident of misconduct in an otherwise stellar career. He contends there were too many discrepancies in his case and the Navy “strung” him along. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. As evidenced in the Applicant’s own statement of 20080108, he admits to being at a bachelor party where he knew cocaine was being used and did not remove himself from the situation. Subsequently, he tested positive for a controlled substance, thus substantiating the misconduct for which he was separated. Upon being notified of administrative separation processing, h e elected a Board of Inquiry and was found guilty of misconduct due to drug abuse and recommended for separation under other than honorable conditions.

In regard to the allegation that there were too many discrepancies in his case, the Applicant does not specifically identify the alleged discrepancies nor does he present documentation to support th i s allegation. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.

He also contends the Navy strung him along for two years . The record reflects in the initial processing of the Applicant’s discharge, the command had to determine whe ther to initiate the case as a probationary officer or reversion. On 20060412, the Commander, Naval Personnel Command signed the Notification of Administrative Separation Processing informing the Applicant that administrative separation action was being taken . The First endorsement of the Applicant’s package was signed on 20060501. On 20060428, the Applicant responded to the notification of administrative separation . On 20060504 the Administrative separation package was in review by Naval Personnel Command. On 20060719, the Applicant requested status of case for leave and civilian employment purposes , was given an estimate discharge date of October 2006 and informed that any job/leave he took would be at his own risk. On 20060816 Applicant submitted his resignation and the package was returned due to missing endorsements. Subsequently, the Applicant was given a Board of Inquiry that was held in January 2007 and the office r was separated in May 2007. T he record reflects there were some delays caused by the member’s status as a probationary officer. It was determined that these delays were not intentional, but necessary to ensure due process in the separation proceedings, correct administrative errors in the paperwork and schedul e the Board of Inquiry. Re gulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable. Therefore, relief is denied.

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. SECNAVINST 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 , 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 “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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NAVY | DRB | 2008_Navy | ND0800593

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