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NAVY | DRB | 2009_Navy | ND0902453

Original file (ND0902453.rtf) Auto-classification: Denied

ex-AMSAR, USN

Current Discharge and Applicant’s Request

Application Received: 20090904

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)        19911202 - 1992 0731     Active:
         USNR (DEP)        19961031 - 1996110 4

Period of Service Under Review:
Date of Current Enlistment: 1996110 5     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19991022      Highest Rank/Rate: AMSAN
Length of Service : Y ear ( s ) M onth ( s ) 1 8 D a y ( s )
Education Level:        AFQT: 70
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      Rifle LOC (3)

Periods of C ONF :

NJP:

- 19990907 :      Article (UA), 2 specifications
         Specification 1: 19990420-19990817, 119 days
         Specification 2: Failure to go to appointed place of duty on 0800, 19990907
         Article (Missing movement)
         Article 92 (Failure to obey order)
         Awarded: Suspended:

- 19990913 :      Article (Wrongful use of a controlled substance - marijuana)
         Awarded : Susp ended:

SCM: SPCM: C C : Retention Warning Counseling :

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

         “96 11 05 ”
         “990420-990817 ”

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 :

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

Applicant’s Issues

1. Characterization of service is too harsh for his misconduct of record .
2. Ability to serve was impaired by his personal problems.
3. Post-service conduct warrants consideration.

Decision

Date: 20101006 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 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 Mil itary Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications: 119 days, surrendered, and failure to go to appointed place of duty), Article 87 (Missing movement), Article 92 (Failure to obey order or regulation), and Article 112a (Wrongful use of a controlled substance, marijuana, amount not found in record). ( The Applicant had a pre-service drug waiver for using marijuana five times prior to entering the Navy. ) Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the administrative procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

Issue 1 : (Decisional) ( ) . The Applicant contends his characterization of service is too harsh for his misconduct of record. A preponderance of the evidence reviewed supports the conclusion the Applicant committed a several serious offenses. Violation of these offenses usually result 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 discharge but opted instead for the more lenient administrative discharge. Based upon available records, the NDRB determined nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy.

Issue 2: (Decisional) ( ) . The Applicant contends his ability to serve was impaired by his personal problems, which contributed to and mitigated his misconduct of record. While on leave in Pennsylvania, t he Applicant’s daughter was born prematurely an d required admission to the neonatal inte nsive care unit for five months and several surgeries early in her life. The Applicant provided medical docum entation of his daughter’s care and testified that he and his wife made their decision for her and their daughter to stay in Pennsylvania to keep their daughter in the care of doctors in the Ohio/Pennsylvania area and not return to the Norfolk area. The Applicant also testified that he needed to be home to help his wife deal with the situation and other personal issues, such as his mother-in-law having multiple sclerosis, and had to find a second civilian job after his Navy pay stopped (after being declared a deserter ) . While the NDRB recognizes it is a personal choice where to receive medical care, had the couple decided to return to the Norfolk area, there would have been more resources available to the m, such as any one of the numerous family support programs sponsored by or for military service members. These programs and services, such as Family Advocacy, Navy – Marine Corps Relief Society, Red Cross, the Chaplain, or even Navy medical health personnel, all provide services to members of the military, regardless of grade, in times of need. Since the Applicant’s misconduct occurred two years after his daughter was born, and he had the opportunity to return to his homeport, t he NDRB determined the Applicant’s personal problems did not mitigate his misconduct.

Issue 3: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration. 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. The Applicant provided several letters of reference and documentation regarding his employment, finances, education and training, substance abuse screening, and community service. After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds. By majority rule, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), but voted unanimously not to change the narrative reason for separation.

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 the discharge was proper and equitable at the time of discharge. However, based on equitable grounds, the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 1999 until 26 March 2000,
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 .

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 | ND0902453

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