ex-AR, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090420
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge:  MILPERSMAN 3630620 (DRUG ABUSE)

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

                             Summary of Service

Prior Service:
Inactive:   USNR (DEP) 19930205 - 19930811   Active:

Period of Service Under Review:
Date of Enlistment:  19930812     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  19970612 Highest Rank/Rate:  AR
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:       AFQT:  35
Evaluation Marks:      Performance:  3.7 (5) Behavior:  3.4 (5)     OTA:
3.49

Awards and Decorations (per DD 214):

Periods of UA/CONF:  19960919-19961006 (19 Days); 19961010-19961011 (1
Day); 19961025-19970107 (76 Days)

NJP:  1

    - 19940615:  Article 108 (Damage to Military Property)
      Article 134 (Disorderly Conduct)
      Awarded:     Suspended:   (15 days)

SCM:  1

    - 19970221:  Article 86 (Unauthorized absence: 5 specifications
             totaling 99 days)
      Article 87 (Missed movement)
      Article 112a (Drug abuse, wrongful use of a controlled substance:
             marijuana)
      Sentence:  (19970221-19970318 (25 days)) FOP

SPCM:                 CC:                 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 Representation:
      From Congress member:
                    Other Documentation:

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

                             Applicant’s Issues

1.  The Applicant believes that he may receive an automatic upgrade if he
didn’t have any felonies within seven years of discharge.
2.  The Applicant would like to get a better job with more pay.
3.  The Applicant received above average evaluations and had accumulated 60
days of leave.
4.  Since discharge, the Applicant has not been in any trouble.

                                  Decision

Date:  20090618              Location:  Washington D.C.
Representation:

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

                                 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 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 violations of
Uniformed Code of Military Justice (UCMJ) Article 108 (damage to military
property) and Article 134 (disorderly conduct); and a summary court-martial
(SCM) for violations of UCMJ Article 86 (unauthorized absence (UA), 5
specifications totaling 99 days), Article 87 (missed movement), and Article
112a (wrongful use of a controlled substance: marijuana).  The Applicant
also had a pre-service drug waiver for using marijuana once prior to
entering the Navy.  Based on the Applicant’s misconduct, his command
administratively discharged him.  The NDRB could not determine whether or
not the Applicant waived his rights to consult with qualified counsel,
submit a written statement, and request an administrative separation board.


: 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 subsequent to leaving naval service, nor does the NDRB have
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.

:  ()  . The Applicant contends his discharge should be upgraded based on
his record of service, which was good apart from a single period of
misconduct.  The NDRB advises the Applicant that certain serious offenses,
even though isolated, warrant separation from the service to maintain
proper order and discipline.  Violation of Article 112a is one such offense
that requires, at a minimum, mandatory processing for an administrative
separation.  A punitive discharge and possible confinement may be awarded
as part of a sentence by a special or general court-martial for this
offense.  An “Under Other Than Honorable Conditions” discharge is warranted
when significant negative aspects of a member’s conduct or performance of
duty outweigh the positive aspects of the member’s military record.  The
NDRB determined the Applicant’s use of marijuana which resulted in a SCM
conviction clearly demonstrates that his significant negative conduct
outweighs his above average evaluations.

Issue 4:  ()  .  The Applicant contends he has not been in any trouble with
the law, is married with one son, and has had steady employment before
moving.  As previously shared with the Applicant through official
correspondence, the NDRB is authorized to consider post-service factors in
the recharacterization of a discharge.  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 the civilian life
subsequent to leaving the service.  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 help
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
previous in-service misconduct was an aberration and not indicative of the
member’s overall character.

Besides the Applicant’s statement on the DD Form 293, he failed to provide
any additional documentation and evidence on his behalf.  The Applicant
could have produced additional evidence as stated in the above paragraph..
Should the Applicant obtain additional evidence or post-service
documentation he may wish to apply for a personal appearance.  Veterans
organizations  such as the American Legion are willing to provide guidance
to former service members in their efforts to obtain a discharge upgrade.


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   Therefore, the awarded characterization of service shall
remain Under Other Than Honorable, and the narrative reason for separation
shall remain Misconduct.

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of his discharge.

                          Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
3 October 1996 until 11 December 1997, Article 3630620, SEPARATION OF
ENLISTED PERSONNEL 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 that include: Article 86
(UA more than 30 days), Article 87 (missed movement), Article 108 (damage
to military property), and Article 112a (wrongful use of a controlled
substance).

                  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, provided 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 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 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.

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 Board for Correction of Naval Records (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 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 NDRB 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 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