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NAVY | DRB | 2008_Navy | ND0801745
Original file (ND0801745.rtf) Auto-classification: Denied

ex-HR, USN
Current Discharge and Applicant’s Request
Application Received: 20080821
Characterization of Service Received: OTHER THAN HONORABLE
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)      19900123 – 19900312              Active:

Period of Service Under Review:
Date of Enlistment: 19900313      Period of E nlistment : Years Extension   Date of Discharge: 19940512
Length of Service : Y ear s M onth s 00 D a ys       Education Level:         Age at Enlistment:       AFQT: 36
Highest Rank /Rate :       HA        Evaluation M arks: Performance:    3. 8 ( 4 )   Behavior: 3. 9 ( 4 )         OTA: 3. 80
Awards and Decorations ( per DD 214):      NDSM , SASM , GACOI , CAR , KLM , NFMFR , MUC

NJP : 3
- 19901220: Article 121 (Larceny)
 Awarded: Susp ended :
\par
- 19931105 : Art icle 112a ( Drug use, marijuana)
Awarded : , , Susp ended :

- 19940111 : Art icle 112a ( Drug use, marijuana)
Awarded : , , Susp ended :

S CM : SPCM: C C :

Retention Warnings:
- 20030326: For post enlistment disclosure of pre - service drug abuse.

- 20030326: For defective enlistment due to failure to disclose pre - service involvement with civil authorities.
        
                                             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 s 112a (Drug use) and Article 121 (Larceny).




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

Applicant’s Issues

 1. Upgrade r equest ed based on mitigating circumstances.

Decision

Date: 20 08 1205             Location: Washington D.C .        R epresentation :

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

 The Naval Discharge Review Board offers its sincere cond olences to the family of the former service member for the loss of their loved one . It was with the greatest respect for his desire to serve our country the Naval Discharge Review Board considered the events and all available documentation leading up to his discharge and weighed those events against the standards of Naval discipline applied throughout our great Service.

: (Equity) RELIEF WARRANTED. The Board reviews the propriety and equity of a discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if a discharge is inconsistent with discipline standards of the Naval Service. In the case of the former service member, the Board conducted a thorough review of his Service Records and the documents forwarded by his representative.

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 former service member ’ s representatives. The member’s record of service was marred by two retention warnings and three NJP ’s for violations of the Uniform Code of Military Justice (UCMJ): Article 112a ( Drug use, w rongful use of a controlled substance, Marijuana) and Article 121 (Larceny) . It was noted while attending recruit training, the member revealed he abused drugs prior to entering the Navy. Additionally, d espite the seriousness of the first NJP for larceny the command elected to retain the member on active duty when he could have been administratively discharged at that time for the commission of a serious offense . The service record indicates after being retained in the Navy he subsequently performed well in his duties, most notably deploying to Iraq in support of Operation Desert Shield/Desert Storm where he earned a Combat Action Ribbon (CAR).

Upon returning from his deployment, the member attended a respiratory therapist technician program and was by all accounts performing well in his assigned duties. According to the member’s sworn statement made during his administrative separation board , convened prior to his discharge from the Navy, he experienced emotional and physical difficu lties after returning home from Iraq . W hile he was receiving military medical treatment, he chose to return to illegal drug use and smoke d marijuana which is a violation of the U C MJ, Article 112a . The NDRB advises the Applicant ’s representative 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 member’s service record contained a medical evaluation which confirmed he suffered from a bipolar condition. However, t he medical evaluation did not state the member was not accountable for his actions or was not aware of his wrongful action. In fact, the member acknowled ged in his sworn statement smoking marijuana was wrong, and he took complete responsibility for his actions . The administrative separatio n board ultimately recommended he should be separated from the Navy with an “Under O ther T han H onorable ” discharge .



The NDRB found, a fter a thorough review of the former service member’s Summary of Service , Service and Medical Records, Discharge Process and additional evid ence submitted by his family that as a result of his confirmed bipolar condition and the mitigating factors of his emotional distress, relief was warranted. The Board determined an upgrade in the discharge characterization to “General (Under Honorable Conditions)”, as requested, would be appropriate.


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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