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NAVY | DRB | 2008_Navy | ND0801513
Original file (ND0801513.rtf) Auto-classification: Denied

ex-PNSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080709
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) 20010614 - 20010712        Active:

Period of Service Under Review:
 Date of Enlistment: 20010713     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040706      Highest Rank/Rate: PNSN
Length of Service : Y ear s M onth s 24 D a ys
Education Level:        AFQT: 35
Evaluation M arks: Performance: 3.0 ( 4 ) Behavior: 2.8 ( 4 ) OTA: 3.09

Awards and Decorations ( per DD 214): (2)

Periods of UA /C ONF :

NJP :
- 20040223 :       Art icle 112a (Wrongfully use cocaine) , 2 specifications
         Awarded : Susp ended :

S CM : SPCM: C C :

Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20061006
NDRB Documentary Review Docket Number:   ND06-00241
NDRB Documentary Review Findings:                 Proper as issued and that 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:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :



Related to Post-Service Period (cont):

Applicant Testified:
Applicant Available for Questions:
Witnesses: Yes
Observers: None

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until
28 April 2005, 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. Discharge characterization too harsh.
2. Post service conduct.

Decision

Date: 20 0 90330             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 appeared before the Board represent ed by the American Legion and request ed an upgrade in the characterization of service contending his “Under O ther T han H onorable Conditions” discharge is too harsh . The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge or characterization of service if such a change is warranted. 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 service was marred by one NJP for a violation of the Uniform Code of Military Justice (UCMJ): Article 112a ( Drug use, w rongful use of cocaine). The Applicant tested positive for cocaine and admitted to drug use. The NDRB advises the Applicant certain serious offenses, even though isolated, warrant separation from the service 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.

The Applicant requested an upgrade in his discharge characterization to “General (Under Honorable Conditions)”. A “General (Under Honorable Conditions)” discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. A discharge “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.
Taking into consideration the testimony of the Applicant, witness testimony of his neighbor of five years, the seriousness of the offense and pre-service drug use , the Board determined the Applicant’s negative misconduct outweighed his positive conduct and he f aile d to meet the standards of established conduct expected from U. S. Sailor’s. The Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant’s representative also requested relief based on post service conduct as evidenced by his certificate of completion of 26 hours of substance abuse treatment, letter from his pastor, mentor/former shipmate, employers for past 4 years, community service (taught Vacation Bible School) and personal testimony of the Applicant. 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 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; 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.

While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade.

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

Dissenting Opinion :

The Applicant was administratively discharged based on misconduct due to drug abuse and given a characterization of other than honorable conditions. Two of the Board members are opined the characterization of discharge was equitable at the time of discharge but should be upgraded based on post service conduct. The Applicant testified he has been married for 17 years, owns a home , gainfully employed since discharged , drug free, and actively involved in the church. Other evidence presented by his representative: 1) testimony of his neighbor of 5 years, a corrections officer who stated the Applicant and wife were good neighbors, 2 ) letter from his pastor indicating the Applicant has been a hard working member of the church for two years, sings with the male’s choir, serves on usher board, and taught Vacation Bible school (certificate of recognition ), and 3) several character references from former military members and employers . Based on the aforementioned evidence of the Applicant’s post service activity, and credible testimony, these two Board members are opined an upgrade was warranted and voted to upgrade the Applicant’s characterization of service to general (under honorable conditions).



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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