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NAVY | DRB | 2009_Navy | ND0901801
Original file (ND0901801.rtf) Auto-classification: Denied

ex-QMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090611
Characterization of Service Received:
Narrative Reason for Discharge: SECRETARIAL AUTHORITY
Authority for Discharge: MILPERSMAN [SECRETARIAL AUTHORITY]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20000407 - 20000625     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000626     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050527      Highest Rank/Rate: QM3
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 57
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 2.7 ( 4 )        OTA: 3.00

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20030327 :       Article 117 (Provoking speeches)
         Article (Simple assault)
         Awarded : Susp ended:

- 20040910 :       Article 112a (Wrongful use of a controlled substance)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20030327 :       For A rticle 117, P rovoking speeches o r gestures (2 specifications); Article 128, S imple assault (2 specifications)

Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”
        
The NDRB will recommend to the Commander, 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), re-issued October 2002, effective 22 Aug 2002 until 31 May 2005, Article 1910-164 (formerly 3630900), SEPARATION BY REASON OF BEST INTEREST OF THE SERVICE (BIOTS),

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.        Characterization incorrect.
2.       Discharge improper –found not guilty at court-martial.
        
Decision

D ate: 20 10 0415             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall read .
 By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
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 one NAVPERS 1070/613 (Page 13) warning and two for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use of a controlled substance ), Article 117 ( Provoking speeches) , and Article 128 ( Simple assault - struck another crewmember ). Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant elected his rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The administrative board was convened on 03 March 2005 . T he administrative board members found by a unanimous vote that there was ins ufficient evidence to separate the Applicant for a pattern of misconduct nor drug abuse and voted unanimously to r et ai n him . However, the Applicant was re-notified of administrative processing based on the Best Interest of the Service (BIOTS) with the least favorable characterization of service being General (Under Honorable Conditions) pursuant to an administrative separation processing notice of 07 April 2005 . The Applicant elected his right to consult with qualified counsel, submit a written statement, obtain copies of documents forwarded to the separation authority and waived his right to a review by the General Court-Martial Convening Authority. The Commander, Navy Personnel Command submitted a recommendation to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) of 19 May 2005, indicating the following: 1) the Applicant was processed for administrative separation by reason of BIOTS because the administrative board did not recognize the overwhelming weight of evidence of record, 2) on 29 April 2004 the Applicant made a voluntary sworn statement to representatives of the Naval Criminal Investigative Services that he “… did one small line of coke …” , and 3) the Commanding Officer, Navy Region Southwest Transient Personnel Unit, San Diego, California, recommended separation with a General (Under Honorable Conditions) characterization of service. The Applicant was subsequently administratively discharged based on “secretarial authority ” and awarded a characterization of General (Under Honorable Conditions).
: (Nondecisional) The Applicant contends he was awarded a General (Under Honorable Conditions) characterization of service , and gladly accepted it but after receiv ing the “separation papers” he noticed that it read “General (Under Other Than Honorable conditions ) . As indicated on page one of this document, the NDRB has made a request for an administrative correction to the Applicant’s DD Form 214 to reflect th at he was awarded a “ General ( Under Honorable Conditions) characterization of service .

: (Decisional) ( ) . The Applicant contends his discharge was improper because he was found not guilty at a court-martial and awarded an Honorable discharge . There is no evidence in the record to support the Applicant’s contention that he went to a court-martial and was found not guilty. However, the evidence of record as previously discussed indicates that the Applicant appeared before an administrative separation board, which determined that there was insufficient evidence to separate him due to either a pattern of misconduct or drug abuse ; the Applicant was re - notified of separation based on BIOTS. After review ing the evidence as previously discussed the NRDB determined there was sufficient evidence to support separation due to BIOTS and that the awarded characterization of service was appropriate taking into consideration the seriousness and frequency of the offenses committed , the Applicant’s length of service, and other factors unique to this case.

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 SECRETARIAL AUTHORITY . 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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