Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901635

Original file (ND0901635.rtf) Auto-classification: Denied

ex-OS2, USN

Current Discharge and Applicant’s Request

Application Received: 20090521

Characterization of Service Received: BUPERS 061833Z JAN97 UNCHARACTERIZED (ENTRY LEVEL SEPARATIONS)

Narrative Reason for Discharge: BUPERS 061833Z JAN97

Authority for Discharge: BUPERS 061833Z JAN97 OPNAVINST 5350.4
Applicant’s Request: Characterization change to:

                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19820513 - 19820725
Active: USNR 19820726 - 19870725
         USNR 19880302 - 19920301

Period of Service Under Review:
Date of Current Enlistment: 19960731     Age at Enlistment: 32
Period of E nlistment : Years Extension
Date of Discharge: 19970219      Highest Rank/Rate: OS2
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: NONE ( )      Behavior: ( )    OTA:

Awards and Decorations ( per DD 214):      (2) NEM

Periods of UA /C ONF :

NJP : 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 /To Representat ion :          From /To Congress m ember :

Oth er Documentation :

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 .

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

Applicant’s Issues

1.       Isolated incident.
2.       Post service conduct

Decision

Date: 20 10 0204             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall (ENTRY LEVEL SEPARATIONS) .
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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Board completed a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service indicated a positive test for cocaine on his first accession urinalysis as a naval reserv ist in the NAVET (Navy Veteran) program . According to regulations, a drug violation requires mandatory processing for entry level separation. The command notified the Applicant of his rights and the Applicant acknowledged receipt of the letter of notification detailing his right to consult with a qualified counsel, submit a written statement and request an administrative board. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement and request an administrative board.

: (Decisional) ( ) . The Applicant contends his drug offense was an isolated incident in nine years of exceptional service which included two honorable discharges. His application indicates he received a discharge characterization of UNDER OTHER THAN HONORABLE CONDITIONS. However, a ccording to the Applicant’s official file as stated in a message transmittal from the Bureau of Personnel, he was in fact discharged for misconduct with a characterization of service as UNCHARACTERIZED (ENTRY LEVEL SEPARATIONS). The Applicant had enlisted in the NAVET program and under the pertinent regulations, this was the appropriate characterization. Although the commanding officer recommended an UNDER OTHER THAN HONORABLE CONDITIONS discharge, this was only a recommendation and the separation authority applied the appropriate regulation in effect which rendered the characterization as UNCHARACTERIZED (ENTRY LEVEL SEPARATIONS) . The Applicant’s HONORABLE service during prior enlistments is not affected by this discharge.

Issue 2: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant states his post-service conduct has been unmarred by any incident subsequent to his separation. However, he offers no documentary evidence to support his claim. The Applicant is directed to the Addendum paragraph regarding Post-Service Conduct for amplifying information. As stated above, the characterization differed from what the Applicant believed it to be and the Board determined no change is warranted.

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 (ENTRY LEVEL SEPARATIONS) 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. 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.

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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NAVY | DRB | 2009_Navy | ND0901635

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