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NAVY | DRB | 2009_Navy | ND0900123
Original file (ND0900123.rtf) Auto-classification: Denied

ex-AM3, USN
Current Discharge and Applicant’s Request
Application Received: 20081023
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)      19990429 - 19990525     Active:            19990526 - 20040513

Period of Service Under Review:
Date of Enlistment: 20040514     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060531      Highest Rank/Rate: AM2
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 2.0 ( 3 )        OTA: 2.81

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (2) FLoC EAWS ESWS

Periods of UA /C ONF :

NJP :
- 20060417 : Article 86 (UA 0745-0844, 20060203)
Article 112a (Drug use - cocaine )
Awarded : Susp ended :

S CM : SPCM: Retention Warning Counseling :

C C :

- 20060315 :       Offense: Driving under the influence of alcohol and resisting arrest.
         Sentence : Two days of incarceration, fined $1,495.00, revocation of driver’s license for 6 months, and ordered to attend 9 months of DUI school prior to having driving privileges reinstated. [Extracted from Commanding Officer’s letter dated 20060524.]

- 20040730 :       Offense: Corporal injury to spouse
         Sentence : Formal probation for 4 years, attend a domestic violence batterer’s program, and a fined $654.00. [Extracted from Commanding Officer’s letter dated 20060524.]

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, medals, Badges, Citations and Campaign Ribbon Awarded or Authorized “ NATIONAL
DEFENSE SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION, NAVY GOOD CONDUCT
MEDAL (2), SEA SERVICE DEPLOYMENT RIBBON (2) FLAG LETTER OF COMMENDATION,


Administrative Corrections to the Applicant’s DD 214

                  NAVY UNIT COMMENDATION, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL                     WAR ON TERRORISM EXPEDITIONARY MEDAL, ENLISTED AVIATION WARFARE SPECIALIST,
ENLISTED SURFACE WARFARE SPECIALIST ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM
19990526 UNTIL 20040513 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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 :

Oth er Documentation :

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until Present,
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 use) .




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

Applicant’s Issues

 1. Record of service.
2. Alcohol use lead to misconduct .
3 . Post-service conduct.

Decision

Date: 20 0 9 0212             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 should be upgraded based on his record of service. 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 NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA) and Article 112a ( Drug use, w rongful use or possession of a controlled substance). 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 , grade or prior record of service . 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 record of evidence also shows the Applicant was convicted in civilian court of driving under the influence of alcohol and inflicting corporal injury to his wife. The Applicant requested , and was granted an Administrative Separation Board which determined the preponderance of the evidence supported the allegations against the Applicant for illegal drug use, drunken driving, and domestic violence. The Board also recommended the Applicant be separated due to drug abuse with an “Other Than Honorable” discharge. The Applicant’s command concurred with the Administrative Separation Board’s recommendation. The NDRB determined the awarded discharge characterization was appropriate and an upgrade founded upon the Applicant’s record of service would be inappropriate.
: ( ) . The Applicant contends his misconduct was mitigated by his use of alcohol at a difficult time in his life. While the Applicant may feel his use of alcohol was the underlying cause of his misconduct, the record of evidence does not demonstrate the Applicant was not responsible for his misconduct or should not be held accountable for his actions due to alcohol use. The NDRB determined an upgrade would be inappropriate.

: ( ) . The Applicant contends he is entitled to a discharge upgrade because of his post-service conduct. 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 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 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.

The Applicant provided evidence of employment and a character reference. The Applicant also provided a statement he is continuing his education. While the Board applauds the Applicant’s post service efforts, the evidence of post-service conduct was not sufficient to warrant an upgrade to his discharge characterization. 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. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. There are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.

The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service 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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