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NAVY | DRB | 2008_Navy | ND0801756
Original file (ND0801756.rtf) Auto-classification: Denied

EX-, USN
Current Discharge and Applicant’s Request
Application Received: 20080821
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: US N R (DEP) 19870416 - 19870804                   Active: 19870805-19911231 HON

Period of Service under Review:
Date of Enlistment : 19911231      Period of E nlistment : Years Extension          Date of Discharge: 19951229
Length of Service : Y ear s M onth s 29 D a ys        Education Level:         Age at Enlistment: 22     AFQT: 58
Highest Rank /Rate :       E-5       Evaluation M arks: Performance:    3.6 ( 3 )    Behavior : 2.6 ( 3 )         OTA: 3.4
Awards and Decorations ( per DD 214):      Rifle Pistol (2x) (2x)

Periods of UA /C ONF :

NJP :
- 19950105: Article 86 ( U A), 2 s pecifications
Article 91 (Disobeying a lawful order) , 2 s pecifications
Awarded: RESTR EPD FOP RIR Susp ended : FOP
- 19950616 : Art icle 86 (U A), 3 s pecifications
Awarded : Susp ended :

- 19950929: Article 112a ( Drug use, w rongful use of controlled substance)
 Awarded: REST EPD

S CM : SPCM:

Retention Warnings:
- 19930105 : For being placed on Petty Officer Quality Control program.

Other:
- Received a Letter of Substandard Service d ated 16 Dec ember 1993 .

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 :


Related to Post-Service Period (cont):

Other Documentation (Describe) :
                  - Reference l etter from Mr . Keith W. d a t e d 10 Apr il 2008

Pertinent Regulation/Law

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 22 July 1994 until
2 October 1996, 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. Youth and i mmaturity .
2. Post s ervice conduct.
Decision

Date : 20 08 1121        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

 Issue 1: (Equity) RELIEF NOT WARRANTED. The Applicant states he was not happy at the time of his misconduct , l ife controlled him and he made irresponsible choices he has always regretted. 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 one retention warning for substandard performance, and three NJP’s for multiple violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA), Article 91 (Disobeying a lawful order) and Article 112a ( Drug use, w rongful use of controlled substance). Violations of these articles are considered serious offenses for which , if adjudicated as part of the sentence upon conviction by a special or general court-martial, a punitive discharge and confinement for up to 5 years is authorized . 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 .

The Applicant provides no documentation that he was not responsible for his actions. Despite being given many opportunities to make better choices, he failed to uphold the standards of conduct of the U. S. Navy. It was noted t he Applicant was on his second enlistment when his misconduct occurred : He did not conduct himself in the manner expected of a Sailor of his time in grade, time in service and military experience. While he may feel his youth and immaturity were the un derlying cause of his infractions , the record clearly reflects his repeated willful misconduct demonstrated he was unfit for further military service . The Board determine d the awarded discharge characterization was appropriate and an upgrade was not warranted.

Issue 2 : (Equity) RELIEF NOT WARRANTED. The Applicant request an upgrade based on his post service record. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subs equent to leaving the service. Outstanding post-service conduct, to the extent that 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. The key word here is “Outstanding ”. The Board is looking for actions that go beyond simply daily living . Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record ; 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 company’s, 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 conduct mitigates the reason for the characterization of discharge.

The Applicant was discharged on the grounds of Drug Abuse, Alcohol Rehab ilitation F ailure and Commission of a Serious Offense (DUI.) The Applicant admits his misconduct and states in his letter to the Board his life has changed since his discharge ; h e is now committed to the Lord. However, the Applicant provided limited documentation of post service

accomplishments. He submitted only one letter of recommendation. To warrant an upgrade 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. The Board determined the
characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the UCMJ violations involved, and based on the limited post service documentation provided 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

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