Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0800858

Original file (ND0800858.rtf) Auto-classification: Denied

ex-PRAA, USN

Current Discharge and Applicant’s Request

Application Received: 20080331

Characterization of Service Received:

Narrative Reason for Discharge: DRUG ABUSE

Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19981110 - 19981129                 Active: USMC 19970325 -19970404 ELS

Period of Service Under Review:
Date of Enlistment: 19981130      Period of E nlistment : Years Extension          Date of Discharge: 20010622
Length of Service : Y ea rs M on ths 23 D a ys         Education Level:         Age at Enlistment:       AFQT: 53
Highest Rank /Rate : PR3    Evaluation M arks: Performance: 3.3 ( 3 )     Behavior: 2.3 ( 3 )          OTA: 2.92
Awards and Decorations ( per DD 214): CGUC MUC AFE SSDR

NJPs :
20010531 : Art icle 112a (Wrongfully use d marijuana)
Awarded : Susp ended:

Types of Documents Submitted/reviewed

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) :
-        Client Treatment Discharge Report
-        Toxicology Report
-        Police Record Check

NDRB Documentary Review Conducted (date): 20071025
NDRB Documentary Review Docket Number: ND07-00419
NDRB Documentary Review Findings: No change warranted

Pertinent Regulation/Law

A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 February 2001, effective
12 February 2001 until 15 July 2001, 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 (s) 112a.

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

Applicant’s Issues

1. Youth and immaturity.
2. Post-service conduct.

Decision

Date: 2008 1006 Location: Washington D.C. R epresentation :

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

Discussion

Issue 1 (Equity) : RELIEF NOT WARRANTED. The Applicant contends his problems in the Navy can be attributed to mistake s made due to his youth and immaturity. 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. The Applicant’s service record is marred by one NJP for violation of the U niform C ode of M ilitary J ustice (UCMJ), Articles 112a (Drug use) , and one retention warning. Violation of Article 112a is considered a serious offense and could be punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The command opted instead for an administrative discharge. While he may feel his youth and immaturity was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to youth or immaturity . The Board determined an upgrade would be inappropriate.

Issue 2 (Equity) : RELIEF NOT WARRANTED. The Applicant contends he is entitled to a discharge upgrade because of his post-service conduct. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides a discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews . Supporting documentation that could have been submitted for consideration by the Board include, but is not limited to: evidence of a verifiable long-term employment record ; evidence of a drug-free existence; documentation of educational pursuits; certification of non-involvement with civil authorities ; evidence of continuing volunteer or church service, and documentation of financial stability or evidence of good standing with financial institutions or credit card companies . The Applicant should be aware completion of these items alone does not guarantee an upgrade from 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 Applicant’s discharge was examined during a Document Review dated 25 October, 2007. The Board then determined that no change was warranted based on the evidence submitted by the Applicant. The Decisional Document from that Review specifically informed the Applicant he could have provided evidence of community service to make his case more encompassing. T he Applicant did not submit any evidence of community service and testified he has not been involved in any such service. Furthermore, with the exception of a written statement from an Ohio Army National Guard recruiter interested in recruiting the Applicant, he did not submit any additional evidence of employment, education, drug-free existence, or non-involvement with civil authorities beyond that which was originally considered during the 2007 Document Review . The Board was therefore only able to consider the previous evidence submitted by the Applicant for the 2007 Document Review and his testimony before the Board in considering this case. Upon hearing the personal testimony and reviewing documentation previously reviewed t he Board determined an upgrade would be inappropriate .

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 or is referred to a court martial 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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 | ND0800858

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