Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0902599

Original file (ND0902599.rtf) Auto-classification: Denied

ex-MA2, USN

Current Discharge and Applicant’s Request

Application Received: 20090922

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)        20020115 - 20020129     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020130     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050531      Highest Rank/Rate: MA2
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 57
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 3.3 ( 5 )        OTA: 3.48
Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP : S CM : SPCM:

CC ARREST :
- 20050502 :       Offense: Obtaining a prescription by fraud/deceit and obtaining a narcotic by forged prescription.

C C :
- 20050510 :        Offense: Obtaining a prescription by fraud/deceit and obtaining a narcotic by forged prescription a nd the unlawful and wrongful ingestion of two Schedule III Controlled Narcotics
         Subsequently confessed to the violations and the unlawful and wrongful ingestion of Tussionex and Lortab, two Schedule III Controlled Narcotics [Details extracted from Commanding Officer’s letter dated 20050517.]
         Sentence: NFIR

Retention Warning Counseling :
- 20030609 :       For failure to meet physical readiness test standards.

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. Isolated incident in 40 months of service.
2. All charges were dismissed.
3. Post-service conduct warrants consideration.

Decision

Date: 20 10 1021 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’s record of service included one NAV PERS 1070/613 (Page 13) warning , and one civilian arrest and conviction for obtaining a prescription by fraud or deceit and obtaining a narcotic by forged prescription, and the wrongful ingestion of two schedule III controlled narcotics. Per the Commander, Navy Region Southwest, letter dated 23 May 2005, the Applicant confessed to the violations and the unlawful and wrongful ingestion of the schedule III controlled substances (Tussioniex and Lortab). (The Applicant did not require a pre-service drug waiver prior to entering the Navy. ) Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the administrative board procedure, the Applicant waived her rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends her misconduct was an isolated incident . Despite a service member’s prior record of service certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. The NDRB found the characterization of the Applicant's discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.

: (Decisional) ( ) . The Applicant contends all charges were dismissed. The Applicant provided documentation from the Superior Court of California of San Diego indicating the plea to count 2 was set aside and the charge was dismissed. However, there were two charges against her and the NDRB found no evidence, nor did the Applicant provide any, to show the first charge was dismissed. The NDRB determined this issue is without merit.

Issue 3: (Decisional) ( ) . The Applicant contends her post-service conduct warrants consideration by providing a letter dated 21 November 2005 regarding her therapy for substance abuse and depression. 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 NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. The Applicant c ould have provided documentation that could include but is not limited to: letters of personal reference , verifiable employment record s , letters of recommendation from employers; certification of non-involvement with civil authorities , evidence of financial stability (mortgage or home rental history, credit score, credit card payments) , college transcripts; d ocumentation of community or church service , and if married, a marriage certificate. 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 thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and 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 .

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008,
Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 123 and 112a .

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 | ND0902599

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