Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900454

Original file (ND0900454.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20081216

Characterization of Service Received:

Narrative Reason for Discharge: - DRUG ABUSE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20061130 - 20070522     Active:

Period of Service Under Review:
Date of Enlistment: 20070523     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080416      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 25 D a y ( s )
Education Level:        AFQT: 67
Evaluation M arks:         Performance: NFIR ( NFIR )          Behavior: NFIR ( NFIR )    OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF : SCM: SPCM: CC:

NJP :
- 20071228 :       Article 112a (Drug use , wrongful use of controlled substance, marijuana )
         Awarded : Susp ended :

Retention Warning Counseling :

- 20070424 :       For being retained in the Naval Service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is base on the information you provided the RECRUIT QUALTY ASSURANCE INTERVIEWER and if it is found that additional information had not been disclosed you could be subject to other judicial or administrative proceedings. MARIJUANA (4X), 06/06-05/07, (2X IN DEP); ENLISTMENT WAIVER GRANTED FOR MARIJUANA USE WHILE IN DEP

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. Reinstatement to the U . S . Navy.
2. Wrongfully accused of d rug abuse.

Decision

Date: 20 0 9 0320 Location: Washington D.C . R epresentation :

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

Discussion

: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning s , regarding .

: ( ) . The Applicant contends his discharge should be upgraded because there was no actual evidence , except that he was coerced on his personal statement. 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 and one SCM for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug use, wrongful use of a controlled substance, marijuana). The NDRB advises the Applicant certain serious offenses warrant separation from the service 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 command did not pursue a punitive discharge but instead opted for an administrative discharge.

The evidence of record shows the Applicant admitted to using controlled substances, specifically THC , on several occasions by making statements such as “I did use marijuana with my friends prior to joining the Navy ”; I did confess in May of 2007 to four times, during the Moment of Truth ”; I did not want the Navy to find out that I had done drugs ”; I do not recall any paperwork saying to disclose that I had used drugs prior to enlistment ” and “ Yes, 2 years ago I did smoke marijuana” d uring your Administrative Board Proceeding on 14 April 2008 . The Applicant submitted no evidence to support his contention; therefore the NDRB must rely upon the presumption of regularity in the conduct of government affairs. It should also be noted the member’s self-admission in using drugs before coming into the Navy and failure to disclose this information could have been considered as fraudulent induction which is a UCMJ chargeable offense; however, the command did not charge the Applicant for fraudulent enlistment. The Board determined the awarded discharge characterization was appropriate and 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

Similar Decisions

NAVY | DRB | 2008_Navy | ND0801270

Original file (ND0801270.rtf) Auto-classification: Denied

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 submitted evidence of education, employment, and several reference letters to support her contention of good post-service conduct. The Board determined an upgrade would be inappropriate.After a...
USMC | DRB | 2009_Marine | MD0900597

Original file (MD0900597.rtf) Auto-classification: Denied

Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
NAVY | DRB | 2011_Navy | ND1101720

Original file (ND1101720.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to...
NAVY | DRB | 2010_Navy | ND1001570

Original file (ND1001570.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks an upgrade to obtain veteran education benefits.2. The Applicant was separated from the Navy on 23 Feb 2001 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...
NAVY | DRB | 2010_Navy | ND1000607

Original file (ND1000607.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to...
NAVY | DRB | 2015_Navy | ND1501310

Original file (ND1501310.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Pertinent Regulation/Law A. Therefore, the awarded...
NAVY | DRB | 2011_Navy | ND1100275

Original file (ND1100275.rtf) Auto-classification: Denied

” 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2...
NAVY | DRB | 2013_Navy | ND1300057

Original file (ND1300057.rtf) Auto-classification: Denied

Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...
NAVY | DRB | 2012_Navy | ND1201548

Original file (ND1201548.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
NAVY | DRB | 2009_Navy | ND0900471

Original file (ND0900471.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)20060825 - 20070822Active: Period of Service Under Review: Date of Enlistment: 20070823Age at Enlistment: Period of Enlistment: YearsExtensionDate of Discharge:20080131Highest Rank/Rate: SRLength of Service: Year(s)Month(s)08 Day(s)Education Level:AFQT: 53EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):Periods of UA/CONF:...

Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900454

Similar Decisions