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NAVY | DRB | 2009_Navy | ND0901061
Original file (ND0901061.rtf) Auto-classification: Denied

ex-OSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20090318
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 [COMMISSION OF A SERIOUS OFFENSE]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19900928 - 19910128     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19910129     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19940318      Highest Rank/Rate: OS3
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.9 ( 3 )        OTA: 3.06

Awards and Decorations ( per DD 214):     

Periods of UA : 19920604-19920608 (4 days), 19940213-19940214 (1 day)

NJP :
- 19921022 :       Art icle 86 (UA 19920803-199308 19 (1 6 days ) )
         Awarded : Susp ended : (10 days for 6 months)

S CM :

- 19931110 :       Art icle 86 (UA), 2 specifications
         Spec 1: 1993081 4 -19930815 ( 1 day)
         Spec 2: 19930915-19931008 (23 days)
         Article 87 (Missing ship’s movement 19930927)
         Article 112a (Wrongfully use marijuana)
         Article 134 (Wrongful use another’s military ID card and shipyard pass).
         Sentence : CONF 30 DAYS FOP RIR E-1

SPCM:   

C C :      199201: Driving Under the Influence [per medical record of 22 February 1994]

Retention Warning Counseling :

- 19901219 :       For fraudulent entry into naval service as evidenced by your failure to disclose your pre - service civil involvement/drug abuse.
- 19921022 :       For violation of UCMJ Article 86, unauthorized absence from 19920803-199208 19.





Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 19940213-19940214 ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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 :   

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 21 July 1994, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 87 , Missing ship’s movement and Article 112a, wrongful use of a controlled substance .


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

Applicant’s Issues

 1.       Substance abuse untreated.
2.       Post-service conduct .
Decision

Date: 20 100414             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 two NAVPERS 1070/613 (Page 13) warning s ; one non-judicial punishment ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence (UA) 16 days); and one summary court-martial (SCM) for violations of the UCMJ: Article 86 ( UA- 2 specifications totaling 24 days), Article 87 ( Missing ship’s movement) , Article 112a (Wrongful use of a controlled substance – marijuana), and Article 134 (Wrongful use of another persons military identification card and shipyard pass). The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the offenses committed, processing for administrative separation is mandatory. When notified for Administrative Separation Processing, the Applicant waived his rights to consult with qualified counsel, submit a written statement, and request an Administrative Board.

: (Decisional) ( ) . This issue was considered by the NDRB but no written response provided since the Applicant has been granted the relief sought based on Issue 2.

Issue 2: (Decisional) ( ) . The Applicant appeared before the NDRB with his representative from the American Legion requesting an upgrade in his characterization of service to General (Under Honorable Conditions) based on his post-service conduct. The Applicant’s representative provided documentary evidence which included: college transcripts, proof of income (pay stubs), results of criminal record search from the State of North Carolina, bank statement, proof of custody of his child, several character references and a copy of his Big Brothers of America volunteer card. Additionally, the Applicant apologized for his actions and indicated that even though he never received treatment for substance abuse he quit drinking in 1995.
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. The Board noted since being discharge d the Applicant has demonstrated a strong commitment to family, community and excellence. After a careful review of the Applicant's post service documentation, in addition to his official service record and supporting documentation, the Board found that the Applicant’s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to G eneral ( Under Honorable C onditions). The Applicant’s career progression, charitable contributions, and strong references demonstrated that he possessed character and drive that was not evident during his tour of active duty. His pos t -service actions demonstrate that his misconduct was most likely isolated , and not reflective of his overall character.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found However, based on the Applicant’s testimony and post-service conduct the NDRB voted unanimously to upgrade the characterization of service to . However, the narrative reason for separation shall remain .


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 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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