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NAVY | DRB | 2008_Navy | ND0800859
Original file (ND0800859.rtf) Auto-classification: Denied

ex-CS3, USN
Current Discharge and Applicant’s Request
Application Received: 20080213
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: US N R (DEP)      19890329 - 19890410              Active: 19890411 – 19990630 HON
Active: USNR 20011018 – 20030708 HON

Period of Service Under Review:
 Date of Enlistment: 20040116      Period of E nlistment : Years Extension          Date of Discharge: 20070330
Length of Service : Yrs Mths 14 D ys      Education Level:         Age at Enlistment:       AFQT: 39
Highest Rank /Rate : MS2    Evaluation M arks: Performance: 4.0 ( 2 )     Behavior: 1.5 ( 2 )          OTA: 3.14
Awards and Decorations ( per DD 214): NDSM (2) GWOTSM HSM (2) NGCA (4) AFEM SSDR (2) AFRM NMCAM (2)

Periods of UA /C ONF :

NJPs :    
        
S CMs :   
         20061212 : Art icle 112a (Wrongful use of methamphetamine, a controlled substance ) .
         Sentence – RESTR FOP RIR E-4 .

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)



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

Applicant’s Issues

 1. Inequitable discharge- based on one isolated incident in 41 months of service.
2. Post service conduct .

Decision

Date : 20 08 0627             Location: Washington D.C         R epresentation :

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

 ( ) : . The Applicant contends her discharge was inequitable because it was based on one isolated incident in 41 months of service with no previous adverse action. 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 misconduct is documented in h er service record which is marred by the finding at a summary courts-martial (SCM) proceeding on 12 December 200 6 for a violation of the U niform C ode of M ilitary J ustice, Article 112a, Wrongful use of a controlled substance. Although discharge for one violation of the UCMJ may seem harsh, that violation was for abuse of a controlled substance and could have earned her a punitive discharge and confinement if adjudged by a special or general court-martial . The NDRB advises the Applicant that despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. Individuals are indoctrinated from the day of recruitment on the U.S. Navy’s zero tolerance drug policy and have had th is policy reinforced by annual Navy-wide training sessions on substance abuse throughout their enlistment . Violations of this policy result in mandatory processing for administr ative separation which usually ends in an unfavorable characterization of discharge. Accordingly, this misconduct substantiates the reason for h er separation as well as h er characterization of service under other than honorable conditions. The Board determined an upgrade was not warranted.

( ) : . The Applicant has presented evidence of post service performance for the Board’s consideration. The Applicant is advised that t here 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 Navy .
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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. 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.

In support of t he Applicant’s request for an upgrade she provided a statement indicating she is currently work ing two jobs ; takes care of her disabled mother ; will start a Bachelor’s of Accounting program in the fall ; and she provided 2 certificates of completion for a Homebuyers Education Program and a Financial Literacy Program. T he Applicant has not provided sufficient documentation for the Board to consider which would support an upgrade. The Board determined an upgrade would be inappropriate at this time.

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 . 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 .



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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