Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801008

Original file (ND0801008.rtf) Auto-classification: Denied

ex-1T2, USN

Current Discharge and Applicant’s Request

Application Received: 20080401

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) 19970115 - 19970615                 Active: 19970616 – 20010514 HON

Period of Service Under Review:
Date of Enlistment: 20010515      Period of enlistment : Years Extension          Date of Discharge: 20060228
Length of Service : Yrs M on ths 13 D a ys Education Level:         Age at Enlistment:       AFQT: 74
Highest Rank /Rate : IT1    Evaluation marks: Performance: 4.5 ( 4 )     Behavior: 4.5 ( 4 )          OTA: 3.93
Awards and Decorations ( per DD 214): NMCAM (3) NDSM AFEM SSDR (3) GWOTEM GWOTSM KDSM Rifle Pistol
NMCOSR NGCM

NJPs :
20060202 : Art icle 112a (Wrongful use of a controlled substance , to wit: marijuana )
Awarded : . Susp ension: . [Extracted from case file].

S CMs :

SPCMs:

C C :

Retention Warnings: .

Administrative Corrections to the Applicant’s DD 214

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

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM
19970616 TO 20010514 ”

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

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:

Types of Documents Submitted/reviewed (Cont)

Other Documentation (Describe) :
-        Daughter’s Speech Pathology Report,
-        Daughter’s Individualized Educational Program Meeting Summary

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 .

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.

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

Applicant’s Issues

1. In service record lacks other significant offenses; n umerous personal stressors resulted in one time use of marijuana.
2. P ost service conduct.

Decision

Date: 20 08 0821 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 his discharge should be upgraded based on the lack of any other significant offenses in his record and his in-service performance . He admitted to a one time use of marijuana while on leave after experiencing numerous personal tragedies . 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. 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 his service record, which is marred by a finding of guilty at a non - judicial punishment (NJP) proceeding on 2 Feb ruary 2006 for a violation of the U niform C ode of M ilitary J ustice (UCMJ) , Article 112a (W rongful 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 after the Applicant had served almost 12 years of active duty service . The fact that the Applicant was experiencing a great deal of stress due to family problems is unfortunate but does not mitigate the misconduct for which he was discharged. It was noted during the review process there was no documentation indicating the Applicant attempted to seek help or assistance from the Navy for the personal issues which he claims caused his lapse in judgment. The Navy makes available numerous programs for all members , regardless of grade or time served, to assist military personnel in such situations during emergencies, family crisis, or stressful situations , e.g., Navy Chapl a in’s office, Red Cross, Family Advocacy, or even medical assistance and counseling, if needed.

Individuals are indoctrinated from the day of recruitment and have had the policy reinforced through annual Navy-wide training sessions throughout their enlistment on the U.S Navy’s zero tolerance policy for substance abuse. Violations of this policy result in mandatory processing for administrative separation which usually results in an unfavorable characterization of discharge. Pursuant to MILPERSMAN 1910-304 a member may be assigned an under than honorable discharge when that individual engages in conduct involving one or more acts of omissions that constitute a significant departure from the conduct expected of members of N aval Ser vice. Examples of such conduct include extended unauthorized absence, drug abuse and drug distribution. Accordingly, this misconduct substantiates the reason for his separation as well as his characterization of service as under other than honorable conditions. T he Board determined an upgrade w ould be inappropriate due to the length of time the Applicant had served and the UCMJ violation involved.

: ( ) . The Applicant also submitted matters of post service conduct in support of his request for an upgrade. He is married, raising two children and a full time student at Tidewater Community College. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable 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 to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions; documentation of a drug free lifestyle; and character witness statements. 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 Board found that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s commitment to family and educational pursuits. However, after a complete review of the entire record, including the evidence submitted by the A pplicant, the Board found the discharge was appropriate in light of the nature and seriousness of the A pplicant’s misconduct, and the evidence of post-service conduct was not sufficient to mitigate the misconduct . The Board determined an upgrade would be inappropriate.

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

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 | ND0801008

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