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NAVY | DRB | 2009_Navy | ND0902098
Original file (ND0902098.rtf) Auto-classification: Denied

ex-OSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090723
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)        19971223 - 19980304     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980305     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081210      Highest Rank/Rate: OS2
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 45
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 4.0 ( 4 )        OTA: 3.86
Awards and Decorations ( per DD 214):     

Periods of C ONF : 20021223-2 0030130 (3 8 days pretri al restraint), 20030131-20030309 (38 days of post-trial sentence )

NJP :

- 20010211 :       Article ( Wrongful use o f a schedule I controlled substance : cocaine, amount NFIR )
         Awarded : Susp ended: NONE

- 20020909 :       Article 112 a ( Wrongful use of controlled substance : cocaine, amount NFIR )
         Awarded : Susp ended: NONE

S CM :

SPCM:
- 20030130 :       Art icle (UA), 2 specifications
         Specification 1: Absent from unit 20020912-20021008, 26 days , surrendered
         Specification 2: Absent from unit 20021015-20021218, 64 days , surrendered
         Article 112a (Wrongfully use cocaine on divers occasions from 200210 to 200212)
         Sentence : CONF 90 days BCD
         CA: Action taken by my predecessor in command on 20030602 is withdrawn and the following substituted thereof; only so much of the sentence as provides for a bad conduct discharge, confinement for 90 days, reduction to pay grade of E-1 and forfeiture of $500.00 pay per month for 2 months is approved and, except for the part of the sentence extending to the bad conduct discharge will be executed. Per the U.S. Navy-Marine Corps Court of Criminal Appeals decision of 30 September 2008, the sentence of no punishment is affirmed.
C C :
- 20010522 :       Offense s (per Page 13 entry of 7 June 2001) :
         Charge 1: Brandishing a F irearm
         Charge 2: A ssault and B attery
         Sentence : (1) $250.00 fine & court cost; 30 days in jail (suspended), unsupervised probation for 1 year.
                   (2) Dismissed.
- 2002 :   Offenses (per Applicant’s testimony):
         Charge 1: Violating a restraining order
          Sentence : (1) 60 days in jail.

Retention Warning Counseling : NFIR

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         Block 4.a., Grade, Rate or Rank, should read “OSSN ”
         “ (26) 020912-02100 8 ; (64) 021015-021218; ( 7 6 ) 021223-0303 09 ”
        
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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 20 June 2005 until Present, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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 .
Equity .


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

Applicant’s Issues

 1. Post-service conduct warrants consideration.

Decision

Date: 2010 0818   Location: Washington D.C . R epresentation : Military Counsel

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 governmental 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 two nonjudicial punishments for violations o f the Uniform Code of Military Justice (UCMJ): Articl e 112a ( Wrongful use of a controlled substance, cocaine (2x), amount not found in record); two civilian convictions for brandishing a firearm and violating a restrain in g order; and one special court-martial (SPCM) for violations of the UCMJ: Article 86 ( Absence without leave, 2 specifications: 26 days-surrendered, and 64 days-surrendered) and Article 112a (Wrongful use of a controlled substance, cocaine, on divers e occasions). The Applicant did not have a pre-service drug waiver but admit ted during the personal appearance hearing that he had used marijuana prior to entering the Navy. At the SPCM, the Applicant pled and was found guilty of the charges against him and was sentenced to confinement for 90 days, forfeiture of pay, reduc tion in rank to E-1, and a Bad Conduct discharge. While the Applicant was on appellate leave, his record was never forwarded to the U.S. Navy-Marine Corps Court of Criminal Appeals for mandatory appellate review. Eventually, the U.S. Navy-Marine Corps Court of Criminal Appeals reviewed his case and, d ue to the extreme delay in the review process, deci ded on 30 December 2008 to affirm his conviction but set aside all punishment.

Issue 1 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration in the equity review of his awarded characterization of service . The NDRB considers 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. T he Applicant provided documentation that included post-service letters of reference, education, employment, and special certifications. The Applicant should be aware submission of these items alone does not guarantee an upgrade as each discharge is reviewed by the NDRB on a case-by-case basis. After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony, the testimony of his witness, and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service generally did not meet the standard of acceptable conduct and performance for naval personnel to warrant an Honorable characterization. Th e NDRB voted unanimously to not change the awarded characterization of service.
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 and the narrative rea son for separation shall remain .

 Since the Applicant elected a personal appearance hearing first, he is not eligible for a documentary review by the NDRB. The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.


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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