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NAVY | DRB | 2009_Navy | ND0902415
Original file (ND0902415.rtf) Auto-classification: Denied

ex-MS2, USN
Current Discharge and Applicant’s Request
Application Received: 20090826
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)        19870615 - 19871202     Active:   19871203 – 19901028 HON

Period of Service Under Review:
Date of Current Enlistment: 19901029     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19961028      Highest Rank/Rate: MS2
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 33
Evaluation M arks:         Performance: 3.6 ( 7 )      Behavior: 3.9 ( 7 )        OTA: 3.81

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

Periods of UA /C ONF :

NJP :

- 19960725 :       Article (Wrongful use of a controlled substance, marijuana)
         Awarded : Susp ended:

S CM :   

SPCM:   

C C :

Retention Warning Counseling :


Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         
“ CONTINUOUS HONORABLE ACTIVE SERVICE FROM
19871203 UNTIL 19901028 ”
         “ 1910-46 MISCONDUCT ”
        
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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.        Applicant contends his first and second enlistments should not have been grouped together as one period of service in determining the characterization of service for his discharge on the DD-214.
2.       Applicant desires upgrade to obtain VA benefits.

Decision

Date: 20 10 0923             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 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 identified two non-decisional issues and no decisional issues for the Board’s consideration . T he Board complete d a thorough review of the circumstances that 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 violation of the Uniform Code of Military Justice (UCMJ) : Article 116 (Breach of Peace) and for o f UCMJ Article 112a ( Wrongful use, possession, etc. of controlled substance, confirmed by positive urinalysis test result for THC , 79 ng/ml, on NAVDRUGLAB msg 240129Z Jul 96) . The Board noted the Applicant admitted to pre-service illegal drug use (marijuana) on the USN Alcohol and Drug Certification form, dated 15 Jun e 1987, and also acknowledged his understanding of the Navy illegal drug use policy. Additionally, the record showed the Applicant later tested positive during his first enlistment initial accession urinalys is on 14 Dec ember 1987 for marijuana. Based on the 1996 Article 112a violation, processing for administrative separation is mandatory regardless of grade or time in service . This usually results in an unfavorable characterization of discharge or, at a minimum, 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 discharge but opted instead for an administrative discharge. When notified of administrative separation processing using the procedure, the Applicant exercised his rights to consult with a qualified counsel , submit a written statement of rebuttal , request an administrative separation board , and request representation at the administrative board. After exercising his right to defend himself at the administrative board proceeding , the Board voted 3-0 to confirm his violation of the UCMJ for illegal drug use and for separation from the Navy . The NDRB noted that the Applicant stated in a July 1996 request memo to his commanding officer that he objected to the pending administrative separation stating he was a 4.0 Sailor, did not use illegal drugs, and requested further evaluation testing or hair analysis testing to disprove the initial positive urinalysis test result. The documentation within the service record does not reflect the results of the commanding officer’s decision or response to the Applicant’s objection and request for further evaluation testing.

: (Nondecisional) Applicant contends his first and second enlistments should not have been grouped together as one period of service in determining the characterization of service for his discharge on the DD-214. The Board noted the Applicant’s service records indicate his first period of enlistment occurred from 3 Dec ember 1987 to 28 Oct ober 1990 , which was H onorable. The Applicant applied for and was authorized immediate reenlistment , which occurred on 29 Oct ober 1990 , resulting in no break in active duty service. When a service member executes an immediate reenlistment without a break in service, a DD-214 is not issued. The Applicant’s second enlistment ended on 28 Oct ober 1996 when he was administratively separated for misconduct due to drug abuse as a result of the positive urinalysis test for THC on or about 8 Jul y 1996. Upon discharge , the Applicant was issued a DD-214 that characterized his current period of service as Under Other Than Honorable Conditions . Administrative errors were made on the original DD-214, issued 28 Oct ober 1996, in which block 12a ( Date Entered AD This Period) listing “ 15 Jun 1987 ” and block 12c ( Net A ctive Service This Period) listing “09 yrs 04 months 14 days” were incorrect. Those errors were corrected by NAVPERSCOM via DD-215, dated 11 Feb ruary 2000 , stating “29 Oct 1990” and “06 yrs 00 months 00 days” for blocks 12a and 12c , respectively. An additional DD-215 was issued by NAVPERSCOM, dated 8 Mar ch 2000, which changed block 12d (Total Prior Active Service) to “03 yrs 04 months 12 days” to reflect the Applicant’s first period of enlistment. Nevertheless, the DD-214 was issued properly at the end of active duty service with a resultant characterization of service based on the Applicant’s in-service conduct during his second enlistment . The NDRB did identify an error on the DD-214 in that block 18 (Remarks) did not specify continuous honorable active service from 19871203 to 19901028 . The NDRB will recommend to the Commander, NAVPERSCOM, changes to DD-214 block 18 (Remarks) and block 25 (Separation Authority) per page one of this document.

: ( Nond ecisional) Applicant desires an upgrade to obtain VA 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. Additionally , t he 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.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and administrative d ischarge p rocess, the Board concluded that the Applicant did not submit sufficient evidence with his application to overcome the government’s presumption of regularity during his administrative discharge for misconduct (drug use) and found that 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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