Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902496

Original file (ND0902496.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20090911

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)        20030422 - 20030727     Active:

Period of Service Under Review:
Date of Current Enlistment: 20030728     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040921      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 24 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 2.0 ( 3 )      Behavior: 1.6 ( 3 )        OTA: 1.94 (3)

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- 20040725 :       Article 112a (Wrongful use of a controlled substance , MDMA, 2073 ng/ml) )
         Awarded : Susp ended:

S CM :    SPCM:    C C :      Retention Warning Counseling :

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 August 2002 until 28 April 2005, 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.        Applicant desires upgrade to re-enlist in the Army.
2.       Applicant contends his positive urinalysis was due to his drink being laced with Ecstasy , which was unknown to him.

Decision
Date: 20 10 1007             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 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 for o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use, possession, etc. of controlled substance , as confirmed by NAVDRUGLAB msg 191454Z Jul 04, MDMA 2073 ng/ml ) . Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant desires an upgrade to re-enlist in the Army. 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 B oard for Correction of Naval Records 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.

: (Decisional) ( ) . The Applicant contends his positive urinalysis test result was due to his drink being laced with Ecstasy , which was unknown to him. When reviewing discharges, the NDRB 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 NDRB considers findings from an NJP as factual unless credible evidence is produced that rebuts or discredits the previous findings. The Board noted the Applicant was found guilty at commanding officer’s NJP of violating Article 112a of the UCMJ, evidence included his positive urinalysis test result for MDMA (Ecstasy , 2073 ng/ml) via NAVDRUGLAB msg 191454Z Jul 04. Violation of Article 112a requir es mandatory processing for separation and 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 of the Applicant but opted instead for an administrative discharge. While in-service, the Applicant had an opportunity to defend himself by: refusing NJP and demand ing trial by court-martial; appealing the commanding officer’s NJP; and request ing an administrative board proceeding. He chose not to defend himself and waived his rights. After reviewing the circumstances surrounding his discharge, the Board determined the Applicant did not submit any evidence with his application to overcome the government’s presumption of regularity during his administrative separation process due to misconduct (drug use). Relief denied.

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 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

Similar Decisions

NAVY | DRB | 2010_Navy | ND1001053

Original file (ND1001053.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Relief denied.Summary: After...
USMC | DRB | 2010_Marine | MD1001432

Original file (MD1001432.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The letter instructed the Applicant’s command to effect separation of the Applicant within five working days.The Applicant was separated from the Marine Corps on 27 February 2009.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...
USMC | DRB | 2009_Marine | MD0902488

Original file (MD0902488.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. A request for a waivercan be submitted during the processing of a formal application for reenlistment through a recruiter.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and administrative discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason...
USMC | DRB | 2009_Marine | MD0902463

Original file (MD0902463.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.
USMC | DRB | 2010_Marine | MD1000815

Original file (MD1000815.rtf) Auto-classification: Denied

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. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief.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,...
USMC | DRB | 2014_Marine | MD1401427

Original file (MD1401427.rtf) Auto-classification: Denied

An Administrative Separation Board determined a preponderance of evidenced proved the Applicant’s use of Ecstasy, and recommended the Applicant be administratively separated from the Marine Corps with Under Other Than Honorable Conditions discharge. After a careful review of the Applicant’s service record, and written statements from his chain of command concerning his character of service, the NDRB determined that, although the Applicant’s misconduct cannot be tolerated, his misconduct...
USMC | DRB | 2011_Marine | MD1101003

Original file (MD1101003.rtf) Auto-classification: Denied

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. ” 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. Reenlistment/RE-code : Since the NDRB has no jurisdiction...
USMC | DRB | 2011_Marine | MD1100557

Original file (MD1100557.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USMCR (DEP)20070618 - 20070826Active: Period of Service Under Review: Date of Current Enlistment: 20070827Age at Enlistment: Period of Enlistment: Years MonthsDate of Discharge:20100225Highest Rank:Length of Service: Year(s)Month(s)29 Day(s)Education Level: AFQT:54MOS: 0621Proficiency/Conduct Marks (# of occasions):()/()Fitness Reports: Awards and Decorations (per DD...
NAVY | DRB | 2014_Navy | ND1400400

Original file (ND1400400.rtf) Auto-classification: Denied

Representation: 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...
NAVY | DRB | 2007_Navy | ND0700984

Original file (ND0700984.rtf) Auto-classification: Denied

After a review of the Applicants records, including the transcript of the administrative board,it was discovered the Applicant was given an opportunity to delay the board due to a possible conflict of interest with her legal representation and the board recorder. The Board determined an upgrade was not warranted.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the...

Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0902496

Similar Decisions