Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901042

Original file (ND0901042.rtf) Auto-classification: Denied

ex-ETSN, USN

Current Discharge and Applicant’s Request

Application Received: 20090318

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 -R   19900817 - 19980816     Active: USN      20001018 - 20070516 HON
         USNR (DEP)        20000927 - 20001017
Period of Service Under Review:
Date of Enlistment: 20070517     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080612      Highest Rank/Rate: ET3
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 73
Evaluation M arks:         Performance: 4.5 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 3.55

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

Periods of UA /C ONF :

NJP :
- 20080501 :       Art icle 112a (Drugs)
         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 :

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 .

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

Applicant’s Issues

1.       Mitigating health problems and denies intentional drug use.
2.       Post -service conduct.

Decision

Date: 20090910             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 governmental 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 one non-judicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Drug abuse, I specification) . Based on the Article 11 2a violation, processing for administrative separation is mandatory . When notified of administrative separation processing, the Applicant waived his rights to consult with a qualified counsel and request an administrative board.

Issue 1: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED . The Applicant's representative is seeking an upgrade to Honorable and contends the characterization of service is too harsh in light of the Applicant's mitigating circumstances (in-service health problems) and the fact that he never knowingly or willingly used illegal drugs . T he Applicant submitted a personal statement wherein he admitting to taking Loritab, a controlled substance from his roommate for ankle pain; the roommate also provided a statement admitting to giving the Applicant her medication (Loritab) and indicated that she has never seen him use illegal drugs . Based on a review of the Applicant’s record of service , his personal statement and evidence provided on his behalf, the Board determined that there was credible evidence of the Applicant ’s illegal use of drugs . The Board also determined that the discharge was appropriate in light of the nature and seriousness of the Applicant's misconduct, and that his in-service perform ance was not sufficient to convince the Board that an upgrade was appropriate at this time. Additionally; the Applicant’s official medical records were not available for the Board’s review and the Applicant did not provide any medical documentation to support the contention that his medical problems should be taken into consideration . Accordingly, the Board determined that there was insufficient evidence to mitigate the misconduct that resulted in the Applicant’s discharge.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED . The Applicant’s representative presented character references on the Applicant’s behalf and the Applicant also indicated in his personal statement that after being discharged he returned to college to obtain a bachelors degree . 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. While the Board applauds the Applicant’s post-service efforts, the Board determined the evidence of post-service conduct did not mitigate the misconduct which precipitated his discharge.

Summary: After a thorough review of the available evidence, to include the Applicant's summary of service, service record entries and discharge process, the Board found the discharge was proper and equitable . Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (DRUGS).

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge . The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

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 Disabled American 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 their 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 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.

Employment/Educational Opportunities : 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.

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.

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 | ND0901042

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