Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901670

Original file (ND0901670.rtf) Auto-classification: Denied

ex-FCSA, USN

Current Discharge and Applicant’s Request

Application Received: 20090527

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)        19970627 - 19971028     Active:

Period of Service Under Review:
Date of Current Enlistment: 19971029     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020221      Highest Rank/Rate: FC3
Length of Service : Y ear ( s ) M onth ( s ) 2 D a y ( s )
Education Level:        AFQT: 82
Evaluation M arks:         Performance: NFIR        Behavior: NFIR          OTA: 3.0

Awards and Decorations ( per DD 214): Coast Guard Unit Commendation Ribbon

Periods of UA : 20000816-20000912

NJP :
- 20020130 :        Article (Wrongful use, possession of a controlled substance), 1 specification
         Awarded : Susp ended:

S CM :

- 20011101 :       Art icle (Unauthorized absence less than 30 days, surrendered ), 1 specification (27 days)
         Art icle (Missing ships movement), 2 Specifications
         Sentence :

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 July 2001 until
21 August 2002, 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. Family problems and unfair treatment by command mitigate d misconduct.

Decision

Date : 20 10 0128 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 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 includes for o f the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession of a controlled substance ) , and for of the UCMJ: Article (Unauthorized absence , ) and Article (Missing ship’s movement, ) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation wa s mandatory. When notified of administrative separation processing , the Applicant rights to consult with a qualified coun sel, submit a written statement and request an administrative board .

: (Decisional) ( ) . The Applicant contends that his discharge was inequitable because f amily problems and unwillingness by his command to assist him with those problems mitigate his misconduct. The Applicant claims that he went UA and missed his ship’s movement in order to be with his fiancée who was experiencing a difficult pregnancy. This situation was aggravated when t he Applicant’s mother was severely injured in an automobile accident , leaving her in an invalid status during a long recovery. The Applicant contends that he made every attempt to go through his chain of command to get assigned to a geographic location that would allow him to be close to his mother and his fiancée so that he could attend to both of their needs , but he was continually rebuffed or ignored . The record reflects that u pon return from UA status, the Applicant was taken to a summary court-martial for being UA and for two specifications of missing ship’s movement. The Applicant pled guilty and was found guilty. The Applicant received orders to a new command shortly after his court-martial. At his new command the App licant continued to pursue an assignment geographically closer to his family. While these events were ongoing, the new command was informed the Applicant had tested positive for marijuana usage from a test administered when he surrendered from UA status. The Applicant received NJP for violation of Article 112a and was processed for administrative separation. The Applicant submitted to the NDRB documentation confirming that his mother was injured and incapacitated. He also submitted correspondence between his pastor, mother and the command as well as correspondence with his home of record congressman asking for a humanitarian discharge and other assistance . The record shows the Applicant engaged in willful and repeated misconduct in complete disregard of the UCMJ as well as Navy policy, rules and regulations. The Applicant had previously acknowledged complete understanding of the Navy’s zero tolerance policy regarding illegal drug use on 26 Jun 1997. The NDRB opined that although the Applicant did experience personal hardship, he did not afford the Navy a reasonable opportunity to respond to his personal needs and instead chose to engage in misconduct , including use of marijuana, which required disciplinary action . Viola tion of Article 112a is a serious offense requiring mandatory processing for administrative separation . This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive di s charge but opted instead for a more lenient administrative discharge. The NDRB found that the Applicant’s circumstances at the time of t he offense did not mitigate his misconduct to the extent that use of drugs in blatant violation of the Navy policy could be excused. An upgrade would be inappropriate .

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. 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 | ND0901670

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