Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801217

Original file (ND0801217.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20080515
Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630620 MISCONDUCT DRUG ABUSE

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)      19960619 - 19960624     Active:

Period of Service Under Review:
Date of Enlistment: 19960625     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970924      Highest Rank/Rate: AA
Length of Service: Y ear( s ) M onth( s ) 00 D a y ( s )
Education Level:        AFQT: 36
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00

Awards and Decorations (per DD 214):      BER

Period of UA: 19970828-19970924 Discharged in absentia

NJP:
- 19970818 :       Article 92 (Failure to obey a lawful order)
         Article 112a (Wrongful use, possession of controlled substance)
         Awarded : Susp ended:

SCM:    SPCM:    CC:

Retention Warning Counseling :

- 19961023 : NFIR (Extracted from Commanding Officer’s Recommendation of Administrative Separation of
19970908).

NDRB Documentary Review Conducted (date):        20071205
NDRB Documentary Review Docket Number:   ND07-00702
NDRB Documentary Review Findings:                 NO CHANGE WARRANTED

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/ Medical Record: Army and Michigan National Guard                Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education/Training:
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:          Community Service:                References:

Types of Documents Submitted/reviewed (cont)
Additional Statements :
From Applicant:        From Representation:    From Congress m ember :

Oth er Documentation: Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

Pertinent Regulation/Law

A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until
11 December 1997, Article 3630620, SEPARATION OF ENLISTED PERSONNEL 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 .

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

Applicant’s Issues

1. Post service conduct.

Decision

Date: 20090504 L ocation: Washington D.C.
R epresentation : Disabled amercian veteran’s

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

Discussion

: ( ) . The Applicant who appeared in an Army National Guard uniform, represented by Disabled America n Veteran’s is seeking an upgrade based on post service conduct as evidenced by his enlistment in the Arkansas and Michigan National Guard. 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service if such a change is warranted. The Applicant’s service is marred by one counseling and one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey a lawful order ) and Article 112a (Drug use, wrongful use/possession of a controlled substance). He also admitted to the illegal use of drugs at the hearing.

The Applicant provided testimony indicating he received (and he was wearing) a Purple Heart for an injury sustained while deployed to Iraq. He agreed to forward a copy of his award to the Board after the hearing since there was no documentation of an awarded Purple Heart found in his record of service. The Applicant also stated he received an honorable discharge from the Michigan National Guard in January 2008. Additionally, the Applicant made claims of being rated 90% disabled by the Veteran’s Administration as a result of his injuries from Iraq. The Applicant had no documentation supporting these claims.

In reference to the statements above, to date the Applicant has not provided the NDRB with any documentation supporting his claims he was awarded a Purple Heart as he indicated he would do at his hearing. There was no documentation in his record, nor provided, to support the claim he was honorably released from the Michigan National Guard in January 2008 or currently joined to another Army National Guard unit. In fact, it should be noted with reference to continued military service, by his own written statement submitted with his DD-293 he claims “because of the severity of my disability, that option is no longer available to me.” The NDRB could not make the connection between his claims of continued military service and being medically disabled from continuing military service. Nor could he explain this discrepancy to the satisfaction of the NDRB members. It should also be noted the Applicant was not on official military orders while appearing before the NDRB in a military uniform and there was no confirmation he was currently assigned to a military unit as the last validated discharge date from service was 12 June 2007. The Applicant provided the name and telephone number of an officer whom he claims authorized him to wear his uniform however, attempts to contact this individual went unanswered. Finally, in an attempt to validate the VA disability claim, the staff of the SECNAVCORB utilized its database accessibility with the VA and conducted a search to view the Applicant’s disability rating. Upon review we did not find any information in the VA’s database which supports his claim nor was there any indication he had an open case file with the VA.

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. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); 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 companies, or other financial institutions; and documentation of a drug free lifestyle. 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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

The Applicant submitted documentation of his service in the Arkansas and Michigan National Guard, completion of an Alcohol and Drug Prevention Training, and character references. The NDRB applauds the Applicant for his service in the National Guard however; this alone was not deemed sufficient to warrant an upgrade. To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the UCMJ violations involved, and limited post service documentation provided.

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, provided 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 granted 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.

Employment/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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 | ND0801217

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