Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801367

Original file (ND0801367.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20080610

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: NONE

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20010628 - 20010708     Active:

Period of Service Under Review:
Date of Enlistment: 20010709     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20021213      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.50
Awards and Decorations ( per DD 214):

Periods of UA /C ONF :       UA : 0800 20020402 - 2125 20020422 ( 20 days, 13 hours, 25 minutes)
0600 20020424 - 0530 20020426 (1 day, 23 hours, 30 minutes)
0530 20021017 - 0730 20021018 (1 day, 2 hours)
0745 20021030 - 0120 20021101 ( 1 day, 17 hours , 35 minutes )
CONF:

NJP :
- 20020517 :      Article 86 (UA)
         Article 87 (Missing ships movement)
         Article 112a ( Drug use, w rongful use of a controlled substance)
         Awarded: Suspended:

- 20021101 :       Art icle 86 (UA)
         Article 87 (Missing movement)
         Article 112a ( Drug use, w rongful use of controlled substance - amphetamines and methamphetamines )
         Awarded : Susp ended :

S CM : SPCM: C C : Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20060629
NDRB Documentary Review Docket Number:   ND06-00003
NDRB Documentary Review Findings:                 Proper as issued and no change is warranted.

Types of Documents Submitted/reviewed
Related to Military Service:
DD 214:         Service/ Medical Record:                  Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:

Related to Post-Service Period (cont):

         Family/Personal Status:          Community Service:                References:

Additional Statements :
From Applicant:        From Representat ion :    From Congress m ember :
Oth er Documentation :
                  - St. Patrick Center Service records, Fatherhood Project certificate
A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 July 2001 until 21 August 2002,
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 , .

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

Applicant’s Issues

1. Reenlistment opportunities.
2. Employment opportunities.
3. Post-service conduct.

Decision

Date : 2009 0518 Location: Washington D.C . R epresentation :

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

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, specifically the paragraph s concerning s and , regarding .

: ( ) . 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 record of service was marred by two NJP s for violations of the Uniform Code of Mil itary Justice (UCMJ): Article 86 ( UA, a bsence without leave ), 2 specifications) ; Article 87 (Missing movement ), 2 specifications ; and Article 112a ( Drug use, w rongful use of controlled substances). It was also noted t he Applicant had a pre-service drug waiver for using marijuana once p r ior to entering the Navy. The NDRB advises the App licant certain serious offenses, even though isolated, warrant separation from the service to maintain proper order and disc ipline. Violation of Article 112a requires mandatory separation regardless of time in service or grade , and results in, at a minimum, an administrative separation usually with an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge based on his misconduct for drug use . An Under Other Than Honorable conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. The Board determined the Applicant’s use of controlled substances is a significant departure from the conduct expected of a service member and the awarded discharge was appropriate. A n upgrade would be inappropriate.

For the Applicant’s edification, t he 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 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. Docum entation 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); character witness statements; 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; attendance or completion of higher education (official transcripts); and documentation of alcohol non-dependency and 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 App licant appeared before the NDRB and brought the following documentation in support of his request : U.S. Department of Education Student Financial Assistance Student Loan Interest statement, St. Patrick Center service records, a certificate of completion for successful completing the classroom portion of the Fatherhood Project, and a program for the graduation ceremony for “The Fatherhood Initiative/Places for Fathers” program. The Applicant also mentioned he qualified with the pistol, but there was no evidence in his service record and he did not provide any such documentation.

While the Board applauds the Applicant's efforts to become a better father and provider , the NDRB determined the Applicant’s testimony and evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization. The NDRB voted 5-0 the characterization will remain Under Other Than Honorable Conditions and the narrative reason will remain Misconduct. For the record, the Applicant had requested on his DD Form 293 to change the narrative reason to “Hardship/Medical.” During the Applicant’s pre - board meet ing with the NDRB representative, the Applicant decided not to request the change because he did not have any documentation to warrant this request.
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 (Drug use) .

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 fo r 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 | ND0801367

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