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NAVY | DRB | 2008_Navy | ND0801439
Original file (ND0801439.rtf) Auto-classification: Denied

ex-SKSR, USNR
Current Discharge and Applicant’s Request
Application Received: 20080625
Characterization of Service Received: OTHER THAN HONORABLE
Narrative Reason for Discharge: COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN 3630300

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

Summary of Service

Prior Service:
Inactive: NONE            Active:

Period of Service Under Review:
Date of Enlistment: 19910723     Period of E nlistment : Years Extension         Date of Discharge: 19930727
Inactive: Length of Service : Y ear s M onth s 24 D a ys
Active: Length of Service: Y ear M onth s 11 D a ys
Education Level: Age at Enlistment: AFQT: 64
Highest Rank /Rate : SKSN          Evaluation M arks: Performance:    3.1 ( 2 )   Behavior: 3.1 ( 2 )         OTA: 3.40
Awards and Decorations ( per DD 214):      NDSM NAM

Periods of UA : 19930505-19930512 per DD Form 214

NJP :
- 19921105 : Art icle 86 ( UA)
Article 128 (Assault consummated by a battery)
 Article 134 (Drunk and disorderly)
 Awarded : Susp ended : Vacated 19930505

- 19930505 : Art icle 112a ( Drug use, w rongful use of a controlled substance)
Awarded : Susp ended :

- 19930512 : Art icle 134 (General Article, specifics NFIR)
 Art icle 134 ( General Article, specifics NFIR )
 Article 86 ( UA)
Awarded : 3 DAYS B&W Susp ended :

S CM : SPCM: C C :

Retention Warnings:
- 19930108 : For unauthorized absence, assault consummated by a battery, drunk and disorder, as evidenced by CO’s
NJP on 19921105.
- 19921119 : For substandard performance in the case of an alcohol related incident resulting in NJP.

Administrative Corrections to the Applicant’s DD 214

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

         “ 3630620 ”
         “ HKK ”
         “ MISCONDUCT DUE TO DRUG ABUSE ”
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 , Drug abuse .




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

Applicant’s Issues

1. Isolated incident in 24 months of service with no other adverse action.
Decision

Date: 20081030 DOCUMENTARY REVIEW 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

 : ( ) . The Applicant contends his discharge is inequitable because it was based on one isolated incident in 24 months of service without other adverse action. 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 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. However, in the Applicant case, the evidence reflects he committed numerous offenses during this enlistment , thus contradicting his allegation the discharge is based on one isolated incident . The Applicant's misconduct is documented in his service record, which is marred by three NJP proceedings h e ld on 05 November 1992, 05 May 1993, and 12 May 1993 for violations of the U niform C ode of M ilitary J ustice (UCMJ): Article 86 (UA), Article 128 ( Assault , consummated by a battery ) , Article 112a (Drug use, w rongful use of a controlled substance ) , and Article 134 ( Drunk and disorderly ) . The record reflects the Applicant was notified of an administrative separation due to drug abuse and he waived all of his rights, including the right to counsel and an administrative separation board ; he was separated with an “O ther T han H onorable D ischarge ” .

The NDRB advises the Applicant certain serious offenses 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, mandatory processing for an administrative separation which usually results in 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. Although discharge for drug abuse may seem harsh, that violation was for abuse of a controlled substance. 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. Based on the aforementioned misconduct and the absence of post service or mitigating circumstances, the NDRB determined the awarded discharge characterization was appropriate and an upgraded 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

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