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NAVY | DRB | 2009_Navy | ND0901226
Original file (ND0901226.rtf) Auto-classification: Denied

ex-PR3, USN
Current Discharge and Applicant’s Request
Application Received: 20090407
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)        20020518 - 20020807     Active:   20020808 – 20060118 HON

Period of Service Under Review:
Date of Current Enlistment: 20060119     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080501      Highest Rank/Rate: PR2
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 3.6 ( 5 )      Behavior: 2.6 ( 5 )        OTA: 3.52

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :
- 20071106 :       Art icle 111 ( Drunken or reckless operation of a vehicle, aircraft or vessel )
         Awarded : Susp ended :

- 20080104 :       Article 112a (Drug s ) [Extracted from Commanding Officer letter ]
         Article 134 (Soliciting another to commit an offense) [Extracted from Commanding Officer letter]
         Awarded : Susp ended:

S CM : SPCM:

C C :
- 20071028 :       Offense: DUI
         Sentence : NFIR

Retention Warning Counseling :
- 20071106 :       For you violated UCMJ, Article 111 ( Drunken or reckless operation of a vehicle, aircraft or vessel )

Administrative Corrections to the Applicant’s DD 214

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

Decorations, Medals, Badges, Citations and Campaign Ribbons A warded or Authorized, should read, “LOC (2), LOA, COA ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20020808 TO 20060118 ”
        
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 . 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. “Clemency warranted because it is a injustice for me to continue to suffer the adverse consequences of a bad discharge. ”
2. In-service record was good.
 3. Ability to serve was impaired because of youth and immaturity, medical and physical problems, he was not working in the field he was trained for, and for personal problems.
4. Would have b een on the road to recovery sooner had he attended the Navy’s IMPACT class after his first incident.
 5. Has been a good citizen since discharge.
Decision

Date : 20 0 9 1210             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall M ISCONDUCT (DRUG ABUSE) .
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 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 one NAVPERS 1070/613 (Page 13) warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 111 ( Drunken or reckless operation of a vehicle, aircraft or vessel ), Article 112a ( Wrongful use of controlled substances, marijuana, based on the command’s random urinalysis of 12 December 2007) , and Article 134 ( Soliciting another to commit an offense, per the commanding officer’s letter ) . The Applicant did not have a pre-service drug waiver prior to entering the Navy. Based on the Article 112a offense , processing for administrative separation is mandatory. Whe n processed for administrative s eparation, the Applicant request ed an administrative discharge b oard. The administr ative discharge board voted 3-0 that the evidence supports the charges of misconduct due to commission of a serious offence and drug abuse, and recommended the Applicant be administratively separated from the naval service with an “Other Than Honorable” discharge.

Issue 1 : (Decisional) ( ) . The Applicant contends clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. Clemency is an act of leniency that reduces the seve rity of the punishment imposed by a court-martial; the Applicant did not receive a court-martial. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.

Issue 2 : (Decisional) ( ) . The Applicant contends his in-service evaluation marks, awards, promotion record, and prior Honorable discharge demonstrate he was a good service member. The NDRB advises the App licant that certain serious offenses, even though isolated, warrant separation from the service to maintain good order and disc ipline. Article 112a is one such offense requiring, at a minimum, mandatory processing for an administrative separation , which usually results in an unfavorable characterization of discharge . Commanders may also pursue confinement and punitive discharge through a special or general court-martial . The command did not pursue a punitive discharge but opted instead for an administrative discharge.

Although the Applicant completed his first enlistment period with an Honorable characterization, each period of enlistment is an independent obligation and characterization is determined for that specific period of time.

Issue 3 : (Decisional) ( ) . The Applicant contends his ability to serve was impaired because of youth and immaturity, medical and physical problems, he was not working in the field he was trained for, and for personal problems. The Applicant provided some documentation to support his contentions, but not enough to form a basis of relief. For the information of the Applicant, the NDRB does not view a member’s claim of youth and immaturity to be a mitigating factor or a sufficient reason for misconduct.

Issue 4 : (Decisional) ( ) . The Applicant contends he would have been on the road to recovery sooner had he attended the Navy’s IMPACT class after his first incident . The Applicant successfully completed the alcohol IMPACT program on 28 February 2008. This program is designed for intervention , not treatment, but it could reveal that a higher level of treatment might be needed. The Applicant failed to demonstrate how this course, if taken earlier, would have prevented his use of marijuana. If the Applicant felt he had an alcohol problem, he could have referred himself for treatment. The NDRB determined this issue is without merit.

Issue 5 : (Decisional) ( ) . The Applicant contends he has been a good citizen since being discharged. The Board determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate s or relate s 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 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 . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

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 MISCONDUCT (DRUG ABUSE) .

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 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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