Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900407

Original file (ND0900407.rtf) Auto-classification: Denied

ex-ENFN, USN

Current Discharge and Applicant’s Request

Application Received: 20081210

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)        200012 2 9 - 20010117     Active:
         USNR (DEP)        20010216 - 20010725

Period of Service Under Review:
Date of Current Enlistment: 20010726     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041021      Highest Rank/Rate: EN3
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: 3.94

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

Periods of UA /C ONF :

NJP :
- 20040513 : [Extracted from NAVPERS 107/604, Awards ]

S CM :    SPCM:    C C :      Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20070329
NDRB Documentary Review Docket Number:   ND09-00407
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 /To Representat ion :          From /To Congress m ember :
Oth er Documentation :

Applicant Testified:
Applicant Available for Questions:
Witnesses: Yes
Observers:

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

Applicant’s Issues

1.       Wants to get a better job to support himself and family .
2.       Youth and immaturity.
3.       Post-service conduct.
Decision

Date: 20 0 9 1116             Location: Washington D.C .        R epresentation :

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included nonjudicial punishment ( ) (details of offense not provided ). However, it is noted on the Report of Medical History, discharge physical signed by the Applicant on 13 October 1994, that he screened positive for marijuana . The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the offense committed, processing for administrative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived right s to consult with qualified counsel and submit a written statement and the Applicant stated that he did not remember . However , per the COMNAVAIRLANT Norfolk, V irginia, general administrative m essage of 24 September 2004 , the Applicant was directed to be discharged due to misconduct (d rugs) with a characterization of Under Other Than Honorable Co n dition s. Per the Applicant’s DD214 , he was separated due to misconduct (drug abuse) and assigned a separation code of HKK indicating he waived his a dministrative board.

: (Nondecisional ) The Applicant is seeking an upgrade in the characterization of service so that he can get a better job to support himself and his two children. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2 : (Decisional) ( ) . The Applicant made a personal appearance before the Board without representation requesting an upgrade to General (Under Honorable Conditions) contending that he was young and immature at the time he used marijua n a . The Applicant testified that upon returning home from a deployment he had a party at his home , used marijuana and upon returning to his command was required to give a urinalysis that tested positive for drugs. The Applicant also testified that while deployed to the Middle East he launched tomahawk missiles against enemy forces but did not know who he killed; he stated that he used marijuana to make the thoughts of these bombings go away. However, the Applicant provided no medical docu mentation of in-service or post-service treatment for post-traumatic stress d isorder or any other mental health condition. Taking into consideration the evidence of record, the testimony of the Applicant, pre- service drug use and the seriousness of the offense committed by the Applicant , the Board determined an upgrade was not warranted.

Issue 3 : (Decisional) ( ) . The Applicant also submitted a personal statement of 02 May 2006 indicating that following his discharge from the Navy he has become successful in the operating engineers union , has enrolled in the helmets-to- hard hats program and is well on his way to becoming a journeyman operating engineer. The Applicant also testified that he has been providing support for his two children, works with his stepfather in the car detailing business and has not had any involvement with the civilian authorities. He also submitted a document from his former e mployer dated 03 April 2006 . The Applicant’s mother also testified that her son is her pride and joy and has matured.

The NDRB consider s post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant' s character or an aberration. T he Board determined the testimony of the Applicant and his mother regarding post-service conduct without current documentation to support the same, was not sufficient to form a basis of relief. On page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate or relate directly to your issues in Item 6.” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant’s DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct. However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant should be aware that post-service conduct alone does not guarantee an upgrade.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

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 .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization so 0 lely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of higher education (official transcripts); 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 | 2009_Navy | ND0900407

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