Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901989

Original file (ND0901989.rtf) Auto-classification: Denied

ex-MRFR, USN

Current Discharge and Applicant’s Request

Application Received: 20090707

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20060131 - 20060320     Active:

Period of Service Under Review:
Date of Current Enlistment: 20060321     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070824      Highest Rank/Rate: MRFA
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.33

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :
- 20070725 :      Article (Unauthorized absence)
         Article 91 (Insubordinate conduct toward senior chief petty officer and chief petty officer )
         Article 112a (Drugs, cocaine )
         Awarded: Suspended:

S CM : SPCM: C C : Retention Warning Counseling: -20070823: For substandard performance

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.       Reenlistment code changed.
2. Discharge was convenience of the government.
3. Medical test used to discharge her.
4 .       Post-service conduct.

Decision

Date: 20 10 0225             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. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAV PERS 1070/613 (Page 13) warning , for o f the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave ), Article ( Insubordinate conduct toward a senior chief petty officer and chief petty officer , ), and Article ( Wrongful use of a controlled substance , cocaine ) . The Applicant a pre-service drug waiver for using drugs prior to entering the Navy. However, she acknowledged an extensive use of drugs, including cocaine and marijuana, in her sworn statement and medical documents she provided with the DD Form 293. Based on the Article 112a violation, processing for administ rative separation is mandatory. 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 .

: (Nondecisional) The Applicant requests a change to her reenlistment 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.

: ( Decisional ) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends the discharge was for the convenience of the government and warrants a change to the separation code. The Applicant’s misconduct, warranting separation for misconduct due to drug abuse is clearly documented in the service record. The separation authority determined that misconduct for drug abuse most clearly described the reason for discharge. Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, a change would be inappropriate. Relief denied.

Issue 3: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends the Navy erroneously used a medical test to process her for discharge. According to Navy regulations including the Military Personnel Manual (MILPERSMAN), urinalysis results fr om a medical facility may be used in disciplinary proceedings, as a basis for separation and for an Under Other Than Honorable Conditions characterization. The Applicant was brought to the Portsmouth Naval Medical Center following a suicide attempt. During the admittance procedure, a blood sample was obtained from the Applicant and subsequently tested positive for cocaine.
There is no indication of any impropriety in this process. The Applicant’s command was notified and followed appropriate procedures which resulted in discharge from the service. The NDRB determined the awarded characterization of service was warranted.

: (Decisional) ( ) . The Applicant requested that the NDRB consider post service conduct as a basis for a more thorough understanding of her performance and conduct during the period of service under review . The Applicant contends she has made drastic changes in her life, is an honor student in college , volunteers in the community as a mentor and role model for youth and has not used drugs since graduating from the Navy’s substance abuse rehabilitation program. The Applicant provided a criminal background check, a drug test and a letter from a college academic department head as evidence on her behalf. While the NDRB applauds the Applicant’s success, t o wa rrant an upgrade post service effor ts need to be more encompassing. The Applicant could have produced additional evidence as stated in the addendum , post service conduct , with the full understanding that completion of these items alone does not guarantee an upgrade. The NDRB determined the characterizatio n of service received, , was appropriate considering the length of service and the UCMJ violations in volved. B ased on the post service documentation provided , 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 | ND0901989

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