Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801624

Original file (ND0801624.rtf) Auto-classification: Denied

ex-EMFR, USN

Current Discharge and Applicant’s Request

Application Received: 20080729

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)      19971203 - 19980818              Active:

Period of Service Under Review:
Date of Enlistment: 19980819      Period of E nlistment : Years Extension Date of Discharge: 20000616
Length of Service : Y ear s M onth s 28 D a ys Education Level: Age at Enlistment: AFQT: 48 Highest Rank /Rate : EMFA Evaluation M arks: Performance: NFIR Behavior: NFIR        OTA: NFIR
Awards and Decorations ( per DD 214):

NJP :
- 19991208 : Art icle 112a ( Drug use, w rongful use of marijuana)
Awarded : Susp ended :

- 20000103 : Art icle 86 (UA - to wit: Restricted men’s muster) , 5 spec ification s
Awarded : Susp ended :

- 20000127 : Art icle 86 (U A - to wit: Restricted men’s muster) , 5 spec ification s
Awarded : 3 DAYS CONF B&W Susp ended :

Retention Warnings:

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) :

                           - MILSPERSMAN 1910-146, OPNAVINST 5350.4C, Codes of Federal Regulation Part 62 Alcohol
- Drug Abuse by DOD Personnel , More on Marijuana Information

Pertinent Regulation/Law

A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 until
11 February 2001, 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, Art icle 86 (Unauthorized absence) and Art icle 112a (Wrongful use of a controlled substance).

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

Applicant’s Issues

1. D ischarge was unjust due to mitigating circumstances .

Decision

Date : 20 08 1120 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 contends his discharge was unjust due to mitigating circumstances surrounding the events determining the use of marijuana. 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 a violation of the Uniform Code of Military Justice (UCMJ): Article 112a ( Drug abuse , w rongf ul use of marijuana ). The NDRB advises the Applicant certain serious offenses 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 states he admitted to drug use and then later recanted his admission once he was informed an NCIS investigation was being conducted concerning his admission. The Applicant then claims he was presented with evidence the NCIS gathered and NCIS helped him coerce a story which implicated him and his fellow shipmates ; h e then recants this story to another NCIS investigator. Other than his statement , as attached to this DD 293 form, the Applicant provides no other evidence concerning the situation as a mitigating circumstance. For the edification of the Applicant, a service member who admits to drug use is processed out in the same manner as one who actually has tested positive for drugs; regardless of if his admission was truthful or not or validated by a drug test. The fact is, the member self admi t t ed to using drugs and in accordance with MILPERSMAN 1910-146, processing is mandatory. The Applicant’s statement recanting the incident do es not mitigate the original admission; regardless if he recanted to the NCIS agent at the time of the investigation or now.

The Applicant has requested an upgrade in their characterization to “Honorable”. W hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel , it is appropriate to characterize that service under “H onorable ” conditions. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The Board acknowledges the admission of the misconduct as a significant negative aspect of the Applicant overall service conduct and determined the awarded characterization was appropriate; an upgrade would be inappropriate.

The NDRB is authorized to consider post-service factors in the rec haracterization 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 . Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; 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 compan ies or other financial institutions; documentation of a drug free lifestyle; continued higher education and character witness statements. 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.

Besides the personal statement provided on the DD Form-293, the Applicant only provided information referencing marijuana. However, to warrant an upgrade to “Honorable” 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. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.

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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NAVY | DRB | 2008_Navy | ND0801624

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