Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801429
Original file (ND0801429.rtf) Auto-classification: Denied

ex-AKAN, USN
Current Discharge and Applicant’s Request
Application Received: 20080625
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630620

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19740815 - 19740902                 Active: 19740903 - 19780901 RELAD
         USNR-R 19780902 - 19791115 HON                     USN 19791116 - 19811217 HON
                                                                         USN 19811218 - 19880417 HON
                                                                         USN 19880416 - 19910917 HON

Period of Service Under Review:
Date of Enlistment: 19910918     Period of E nlistment : Years Extension         Date of Discharge: 19940505
Length of Service : Y ear s M onth s 18 D a ys      Education Level:        Age at Enlistment:      AFQT: NFIR
Highest Rank /Rate : AK2    Evaluation M arks: Performance:   3.8 ( 2 )          Behavior: 3.9 ( 2 )        OTA: 3.90
Awards and Decorations ( per DD 214): Rifle NAM KLM (2) (3) JMUA
NEM HSM

Periods of CONF : Confined 19930813 – 19931001

NJP :
- 19940225 : Art icle 112a ( Drug use, cocaine)
Awarded : . Susp ended : .

S CM :

SPCM:
- 19930813 : Art icle 112a ( Drug use, cocaine)
         Sentence : CONF for 60 days (19930813-19931001 ( 49 days) ) FOP RIR.
         CA action: 19931007 Sentenced a pproved and executed.
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:

         “ 19930813 – 19931001 ”

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/ 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 Congress m ember :

Other Documentation (Describe) :

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 5 March 1993 until 21 July 1994,
Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 .




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

Applicant’s Issues

 1. Military benefits.
2. Record of service.

Decision

Date: 20 08 1030         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 concerning , regarding .

: ( ) . The Applicant contends he is entitled to an upgrade to his discharge due to his record of service. Specifically, he served more than eighteen years before being discharged. 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 one special Court-Martial and one NJP for violation s of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug use, cocaine ) . Violation of Article 112a is considered a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. The sentence of the special court-martial did not include a punitive discharge, but the command did pursue an administrative separation as required by regulations. Due to the Applicants length of service, his discharge had to be approved by the Deputy Chief of Naval Operations (DCNO N1). The DCNO N1 directed the Applicant’s discharge on 28 April 1994.

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. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in , at a minimum level, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum level, a punitive discharge awarded by a court-martial. The Board determined the awarded characterization was appropriate and 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 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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0801225

    Original file (ND0801225.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. The Board determined an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, ” 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.

  • NAVY | DRB | 2008_Navy | ND0801616

    Original file (ND0801616.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From Representation:From Congress member: Other Documentation (Describe): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...

  • NAVY | DRB | 2008_Navy | ND0800467

    Original file (ND0800467.rtf) Auto-classification: Denied

    The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract and falls far short of that required for an upgrade of his characterization of service.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. ” Additional Reviews :...

  • NAVY | DRB | 2005_Navy | ND0501250

    Original file (ND0501250.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant was awarded nonjudicial punishment for violations of UCMJ Articles 92 and 112a. 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

  • NAVY | DRB | 2009_Navy | ND0902586

    Original file (ND0902586.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2005_Navy | ND0501108

    Original file (ND0501108.rtf) Auto-classification: Denied

    The Applicant requested that his characterization of service received at the time of discharge be changed to honorable. Commanding Officer’s comments: “I am convinced, based on the preponderance of evidence, that sexual harassment was committed by CM2 L_ (Applicant), in violation of article 92 of the UCMJ nonjudicial punishment was imposed on CM2 L_ (Applicant) as a result of his kissing a female seaman apprentice against her will in the workplace on two occasions. A request for a waiver...

  • NAVY | DRB | 2009_Navy | ND0900710

    Original file (ND0900710.rtf) Auto-classification: Denied

    Service benefits.2. ” 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. 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.

  • NAVY | DRB | 2008_Navy | ND0801405

    Original file (ND0801405.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)19850621 - 19850624Active: 19850625 - 19890524 HON19890525 - 19930408 HON Period of Service Under Review: Date of Enlistment: 19930409Period of Enlistment: YearsExtensionDate of Discharge:19930730Length of Service: Years Months21 DaysEducation Level:Age at Enlistment:AFQT:58Highest Rank/Rate:AK3EvaluationMarks:Performance:2.0(1) Behavior:2.0(1)OTA: 2.60Awards and...

  • NAVY | DRB | 2009_Navy | ND0900694

    Original file (ND0900694.rtf) Auto-classification: Denied

    The Board determined the awarded discharge was appropriate and an upgrade based on an isolated incident would be inappropriate.The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and DD Form 293 submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe...

  • NAVY | DRB | 2006_Navy | ND0601116

    Original file (ND0601116.rtf) Auto-classification: Denied

    Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation Record not available. Decisional Issues: Issue 1 ().There is credible evidence in the record that the Applicant used illegal drugs, and he admits to doing so. ” 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.