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NAVY | DRB | 2008_Navy | ND0800882
Original file (ND0800882.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20080311
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)      20010208 - 20010212              Active:
Period of Service Under Review:
 Date of Enlistment: 20010213      Period of E nlistment : Years Extension          Date of Discharge: 20021108
Length of Service : Yrs Mths 26 D ys      Education Level:         Age at Enlistment:       AFQT: 32
Highest Rank /Rate : SA     Evaluation M arks: Performance: 3.0 ( 1 )     Behavior: 1.0 ( 1 )          OTA: 2.67
Awards and Decorations ( per DD 214): NDSM

Discharged in Absentia (Presumably UA)

 NJPs :    
         20020607 : Art 112a (Wrongful use, possession, of controlled substance ) .
                  Date of NJP extracted from Awards Listing, NJP information extracted from Evaluation Report &           Counseling Record dtd 20020715) .
         Awarded - . Susp - .
        
Retention Warnings: .
         20010418 : For failure to disclose your pre-service civil convictions/involvement. August 2000, in Voorhees Township, New Jersey, you were charged with theft by deception. You paid a $334.97 fine and a total of $400.00 in court costs. Nothing is pending. The information concerning the above disclosure was provided by your voluntary statement of 02 April 2001. Be advised that if the information provided is determined to be false, this page 13 may be considered void .

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. Reen listment opportunity.
2. Post service conduct. The Applicant claims he has a family , is a good father , and is a different person now.

Decision

Date: 20 08 0702             Location: Washington D.C         R epresentation :

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

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , , regarding .

( ) : . For post service conduct t he Applicant claims he has a family , is a good father , and is a different person now. For the edification of the Applicant, 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 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. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. T he Applicant could have provide documentation of continuing educational pursuits, employment record s , documentation of community service, certification of non-involvement with civil authorities , and credible evidence of a substance free lifestyle for the NDRB to consider in adjudicating relief based on post-service conduct. The Applicant is advised 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 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 a violation of the Uniform Code of Military Justice (UCMJ) , Article 112a (Wrongful use or possession of a controlled substance). Violations of Article 112a require a mandatory separation from military service and can warrant a punitive discharge in addition to confinement, if adjudicated by a court-martial. The service record also reflects the Applicant was given a retention warning on 18 April 2001 for failure to properly disclose a pre-service civil conviction of theft by deception in New Jersey. Withholding of information as such during entry into military service is a violation of Article 83 of the UCMJ, Fraudulent enlistment, which is also punishable by a punitive discharge and confinement if adjudicated by a court martial.
The command did not pursue a court-martial but opted instead for an administrative discharge based on the Article 112a violation and discharged the Applicant on 8 November 2002; t he service record reflects the Applicant was discharged in Absentia. The Board determined an upgrade was 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 112a .

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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