Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902564

Original file (ND0902564.rtf) Auto-classification: Denied

ex-MMFA, USN

Current Discharge and Applicant’s Request

Application Received: 20090917

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: Early Release - Other

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20000731 - 20000914     Active:

Period of Service Under Review:
Date of Current Enlistment: 20000915     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030421      Highest Rank/Rate: MMFN
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 52

Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP:

- 20030115 :      Article (Drugs – cocaine 327 ng/ml )
         Awarded : Susp ended:

SCM:     SPCM:    C C :

Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20041112
NDRB Documentary Review Docket Number:   ND04-01007
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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

         “ 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 :

Applicant’s Issues

1. Ship failed to comply with Article 15 procedures.
2. Ship failed to inform Applicant of his rights to appeal the captain’s mast punishment.
3. Urinalysis test was conducted improperly.
4. Post-service conduct warrants consideration.

Decision

Date: 2010 1018 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 one nonjudicial punishment (NJP) for violation o f the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use of a controlled substance, cocaine, 327 ng/ml). (The Applicant required a pre-service drug waiver for using marijuana three times and mushrooms once 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 board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

Issue s 1 -2 : ( ) . The Applicant contends his ship failed to co mply with Article 15 (NJP) procedures and failed to inform him of his right to appeal the NJP punishment. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. In this particular case, the Applicant’s violation of Article 112a required mandatory processing for administrative separation, regardless of whether or not he was taken to NJP. Furthermore, the NDRB noted the Applicant had signed NAVPERS 1626/7 after his NJP on 15 January 2003, a statement that read, “It has been explained to me and I understand that if I feel this imposition of nonjudicial punishment to be unjust or disproportionate to the offenses charged against me, I have the right to immediately appeal my conviction to the next higher authority within 5 days.” The NDRB determined the Article 15 procedures had no bearing on his separation and that he was informed of his right to appeal his NJP punishment.

Issue 3: (Decisional) ( ) . The Applicant contends his urinalysis test was conducted improperly. Other than his statement, the Applicant failed to provide any documentary evidence to support his contention. There was nothing in the Navy Drug Laboratory, Jacksonville, FL, message of 102122Z January 2003 that cited any irregularities in the twelve samples received on 6 January 2003. Based on the presumption of regularity, the NDRB determined the urinalysis test was conducted properly.

Issue 4: (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 documentation regarding his employment, education, substance abuse testing, and criminal record search. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. The Applicant c ould have provided additional documentation that could include but is not limited to: letters of personal reference , a verifiable employment record, letters of recommendation from his employers , evidence of financial stability (mortgage or home rental history, credit score, credit card payments) , and documentation of community or church service. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.

Summary: 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 witnesses, the facts and circumstances unique to this case and discharge process, the NDRB found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

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 .

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 | ND0902564

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