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NAVY | DRB | 2009_Navy | ND0901116
Original file (ND0901116.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20090325
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)        20011017 - 20020107     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020108     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031229      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 68
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 1.0 ( 2 )        OTA: 2.33

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20020618 :       Art icle 86 ( Absent without leave )
         Awarded : NFIR Susp ended : NFIR

- 20021213 :       Article 86 ( UA )
         Awarded : Susp ended:

- 20030316 :       Article 86 ( UA )
         Awarded : 3 DAYS Susp ended:

- 20030519 :       Article 80 ( Attempt to violate a lawful regulation )
         Awarded : Susp ended:

- 20031005 :       Article 83 ( Fraudulent enlistment, appointment, or separation ) , 2 specifications
         Awarded : Susp ended:

S CM :

SPCM:

C C :

Retention Warning Counseling : (Per CO Adsep Ltr Dtd 15 Dec 03)

- 20020618 :      
- 20021213 :      
- 20030316 :      


Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
        
The NDRB will recommend to the C ommander, 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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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. Decisional issue. Felt he was misled by recruiter regarding pending civilian charges.
 2. Decisional issue. Feels unit was not concerned about him and his punishment was disproportionate to the misconduct.

Decision

Date: 20 0 9 1008             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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al 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 NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized Absence), Article 80 ( Attempt to violate a lawful regulation) and Article 83 ( Fraudulent enlistment). Ba sed on the offenses committed by the Applicant, command administratively processed for separation. When notified for a dministrative s eparation p rocessing, the Applicant waived right s to consult with qualified counsel, submit a written statement, and request an a dministrative b oard .

: (Decisional) ( ) . The Applicant claims he was disciplined for fraudulent enlistment because he did not disclose on his DD Form 1966 enlistment contract that he was pending DUI charges in Arizona . While th e Applicant did face DUI charges prior to entry, he was actually disciplined for fraudulent enlistment because of his pre-service drug use. I n block 35 of his DD 1966, the Applicant claims to have experimented with marijuan a only 14 times. He later admitted that he used marijuana at least three times a week for a period of three years prior to enlisting in the US Navy. A member may be separated on the basis of erroneous enlistment when the enlistment would not have occurred had the relevant facts been known or had appropriate directives been followed . The extent of his involvement with illegal drugs far exceeded that expected of “experimental use” and had it been known, he would not have been allowed to enlist in the US Navy .

Issue 2: (Decisional) ( Equity) . The Applicant claims he was under stress due to separation from his spouse, the recent birth of his first child, and a pending deployment t o a war zone. His felt his misconduct was minor and a result of poor communication with his chain of command . He noted that although he brought up his problems to his chain of command and to the chaplain, he did not receive command support and the command was dismissive of his issues . While he may feel the before mentioned factors were the underlyi ng cause of his misconduct, the five separate NJPs in his record clearly reflect his willful misconduct and demonstrated that he was unfit for further service . There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly or did not try to assist him . He produces no documentation that he went to Navy Relief, Family Services , Red Cross, or the numerous other assistance organizations for relief. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

The Applicant has been discharged for almost 6 years. He failed to provide any documentation and evidence on his behalf to support a post-service conduct review. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct. The Applicant should provide documentation which could include but not limited to: letters of personal references and verifiable employment record /letter of recommenda tion from his employers ; and certification of non-involvement with civil authorities , evidence of financial stability (home ownership/home rental history, credit card payments); documentation of community /church service ; and , if married, a marriage certificate .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, 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 , December 29, 2003 . 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 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.

Post-Service Conduct : 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.

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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