Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900471
Original file (ND0900471.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20081222
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)      20060825 - 20070822     Active:  

Period of Service Under Review:
 Date of Enlistment: 200 7 082 3     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080131      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20080118 : Article 112a (Drug use – Marijuana )
Awarded: Susp ended :

S CM : 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. Less than 180 days of active duty.

Decision

Date: 20 0 9 0319             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 he is entitled to a discharge upgrade because he served less than 180 days on active duty and should have therefore received an “Uncharacterized ” discharge. 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 NJP for violation of the Uniform Code of Military Justice (UCMJ): 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 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.

In response to the Applicant’s Issue, an “U ncharacterized ” description shall be used w hen a member is separat ed during an entry level status which is defined as the first 180 days of continuous active duty service unless separation for misconduct, fraudulent enlistment, or homosexual conduct is authorized and when characterization under other than honorable conditions is warranted. As indicated above, violation of Article 112a is a serious offense which usually results in an “Under Other Than Honorable Conditions” discharge. The NDRB 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 evidence submitted by the Applicant, the Board found

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.

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 | ND0801560

    Original file (ND0801560.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: ENTRY LEVEL SEPARATION Summary of Service Prior Service: Inactive: USNR (DEP)19951214 - 19960421Active: Period of Service Under Review: Date of Enlistment: 19960422Period of Enlistment: YearsExtensionDate of Discharge:19961108Length of Service: Years Months17 DaysEducation Level: Age at Enlistment:AFQT: 92Highest Rank/Rate:SNEvaluationMarks:Performance:NFIR Behavior:NFIROTA: NFIRAwards and Decorations (per DD...

  • NAVY | DRB | 2008_Navy | ND0801034

    Original file (ND0801034.rtf) Auto-classification: Denied

    The Board determined an upgrade to General, as requested, would be inappropriate as the “ Uncharacterized ” better reflects the Applicant’s 22 days of service.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 Pertinent Regulation/Law A. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing,...

  • NAVY | DRB | 2009_Navy | ND0900624

    Original file (ND0900624.rtf) Auto-classification: Denied

    The NDRB determined the Applicant’s case does not meet this high criterion for an upgrade to his characterization of service to “Honorable ” .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...

  • NAVY | DRB | 2009_Navy | ND0900820

    Original file (ND0900820.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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.While the Board applauds the Applicant’s post-service efforts, the Board determined theevidence of post-service conduct was not sufficient...

  • 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 | 2008_Navy | ND0801593

    Original file (ND0801593.rtf) Auto-classification: Denied

    The Board determined the characterization of discharge received was appropriate for the violations the Applicant was responsible for.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found Pertinent Regulation/Law A. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is...

  • NAVY | DRB | 2009_Navy | ND0902035

    Original file (ND0902035.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)19990810 - 19990830Active: Period of Service Under Review: Date of Current Enlistment: 19990831Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20000331Highest Rank/Rate:SRLength of Service: Year(s)Month(s)01 Day(s)Education Level:AFQT: 34EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):NONEPeriods of...

  • NAVY | DRB | 2008_Navy | ND0800680

    Original file (ND0800680.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE).Discussion (): RELIEF NOT WARRANTED.The Applicant did not present any issues however, it is assumed from the certificates provided the Applicant is requesting an upgrade in the characterization of his discharge 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...

  • NAVY | DRB | 2008_Navy | ND0801604

    Original file (ND0801604.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 a statement with his DD-293 Application claiming employment, education efforts, and participation in his church and in other community service. The Board determined the characterization...

  • NAVY | DRB | 2010_Navy | ND1000945

    Original file (ND1000945.rtf) Auto-classification: Denied

    Representation: 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...