Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900465

Original file (ND0900465.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20081219

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)      19941219 - 19950809     Active:

Period of Service Under Review:
Date of Enlistment: 19950809     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19961213      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 4 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.67

Awards and Decorations ( per DD 214):

NJP :
- 19961202 :       Article 90 ( Disrespect towards a CWO2 )
         Article 91 (Disobey a lawful order from CWO2)
         Article 92 (Derelict in performance of duties)
         Awarded : Susp ended:

S CM :
- 19960912 :       Article 86 (UA), 2 specifications :
                  - S pecification 1: 19960731-19960816 (16 days , 7 hours, 30 minutes)
                  - Specification 2: 19960819-19960825 ( 7 days )
         Article 112a (Drug use - Marijuana )
         Sentence : (19960914-19961008 ( 25 days))

SPCM: C C : Retention Warning Counseling :

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 :

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

Applicant’s Issues

1. Seeking to reenlist or become a police.
2. Hazing led to providing false statement a dmitt ing to drug use .
3 . Post service conduct.

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
: The Applicant states ha has a passion to return to the military or become a police and is therefore seeking an upgrade. 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 , for additional information regarding .

: ) . The Applicant contends his discharge should be upgraded because he was hazed and humiliated on several occasions. The Applicant also contends h e admitted to using marijuana to get kicked out of the military to avoid further hazing by his chain of command. 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 service was marred by one NJP for violations of the Uniform Code of Military Justice (UCMJ) : Article 90 ( Disrespect toward a chief warrant officer ); Article 91 ( Disobey ing a lawful order of a chief warrant officer ) and Article 92 ( Dereliction of duty ) and one SCM for violations of the UCMJ : Article 86 ( U A), totaling 23 days (2 specifications) and Article 112a ( Drug use (marijuana) ) .

There is credible evidence in the record to support a discharge based on misconduct due to illegal drug use. The Applicant’s self-admission to drug use is considered as “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a. The NDRB advises the Applicant certain serious offenses , even though isolated, 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 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. Additionally, there is no evidence in the record nor was any provided by the Applicant to support the contention of hazing. He did not provide any documented evidence he complained or sought redress from his commanding officer, the chaplain, legal , military police/ security or other military authorities for the alleged maltreatment.

The Applicant has requested an upgrade in his discharge characterization to “General (Under Honorable Conditions)”. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. An “Under Other Than Honorable” conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract and is not indicative of service members in receipt of a “General (Under Honorable Conditions)”. The Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends he has become an outstanding citizen who has never been in trouble and helps out where he can. 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 the service. However,

the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post- service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, as examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct. 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’s statement concerning post-service conduct, without documented evidence, was found not sufficient enough to support an upgrade. The Board determined the awarded discharge 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 statement submitted by the Applicant, the Board found

Pertinent Regulation/Law

A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997,
Article 3630620, SEPARATION OF ENLISTED PERSONNEL 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) .

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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NAVY | DRB | 2009_Navy | ND0900465

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