Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1000134
Original file (ND1000134.rtf) Auto-classification: Denied
ex-SHSN, USN
Current Discharge and Applicant’s Request
Application Received: 20091015
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)        20020725 - 20030716     Active:            20030717 - 20081130

Period of Service Under Review:
Date of Current Enlistment: 20081201     Age at Enlistment:
Period of E nlistment : Years NO Extension
Date of Discharge: 20090317      Highest Rank/Rate: SH3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 51
Evaluation M arks:         Performance: 4.0 (3)      Behavior: 3.75 (3)       OTA: 3.85 (3)
Awards and Decorations ( per DD 214):      , , , ,

Periods of UA /C ONF :

NJP:
- 20081216 :      Article (Drugs – cocaine , confirmed via Naval Drug Lab msg )
         Awarded : Susp ended:

SCM:     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 030717 UNTIL 081130 ”

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 2 June 2008 until 9 November 2009,
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.        Nondecisional issue: The Applicant seeks upgrade in discharge characterization of service in order to be e ligible for medical benefits from the Veterans Administration.
2.       Decisional issue : The Applicant contends that his misconduct was an isolated incident in what was otherwise 6 years of honorable service; as such, applicant contends that the characterization of service received at discharge was inequitable.

Decision

Date : 20 10 1118             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. The Applicant identif ied one decisional issue for the NDRB’s consideration . T he NDRB complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings and one non-judicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use, possession, etc of a controlled substance - Cocaine ). The Applicant ’s enlistment records reflect no pre-service drug waiver s . Based on the Article 112a violation, processing for administ rative separation is mandatory. The NDRB reviewed the Applicant’s administrative separation package; w hen notified of administrative separation processing using the notification procedure, the Applicant rights to consult with a qualified coun sel, to submit a written statement , and to request an administrative board hearing.

The Applicant provided additional documentation to the NDRB that included his personal statement of issues and c op ies from his medical record and excerpts from his service record.

: (Nondecisional) : The Applicant seeks upgrade in discharge characterization of service in order to be e ligible for medical benefits from the Veterans Administration . This issue does not serve to provide a foundation upon which the Board can grant relief; there is no requirement or law that grants the NDRB the authority to re-characterize discharges based solely on the issue of obtaining veterans benefits. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an applicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional help. Additionally, 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 the equity of a discharge. The Applicant is directed to the Addendum in this document regarding this issue.

: (Decisional) ( ) . The Applicant contends that his misconduct was an isolated incident in what was otherwise 6 years of honorable service; as such, applicant contends that the characterization of service received at discharge was inequitable. D espite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. Violation of Article 112a is one such offense , requiring mandatory processing for administrative separation, regardless of grade or time in service. This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not opt to pursue a punitive discharge but instead chose the more lenient administrative discharge. The Applicant did not request a hearing before a discharge board as it was his right to do so and, while being processed for separation, did not contest the separation. The NDRB determined that the separation was proper and the narrative reason for separation was accurate . A change would be inappropriate. Relief denied .

Characterization of service at discharge is the recognition of a Sa ilor’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval service. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was appropriate .

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 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 | 2008_Navy | ND0801105

    Original file (ND0801105.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or 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 Representation: From Member of Congress: Other Documentation (Describe): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • USMC | DRB | 2013_Marine | MD1300760

    Original file (MD1300760.rtf) Auto-classification: Denied

    Based on the evidence of record, and in consideration of the statements from the chain of command and counseling records regarding the Applicant’s performance and conduct, the NDRB, by a vote of 5-0, determined the quality of the Applicant’s discharge characterization and narrative reason were generous given his pattern of misconduct. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge...

  • NAVY | DRB | 2010_Navy | ND1000468

    Original file (ND1000468.rtf) Auto-classification: Denied

    The NDRB conducted a thorough review of the Applicant’s military service record, administrative separation package, the circumstances that led to her discharge, and the discharge process to ensure her discharge met the pertinent standards of equity and propriety.In accordance with the MILPERSMAN, a member of the Naval Service may be separated on the basis of erroneous enlistment when that enlistment would not have occurred if relevant facts had been known by the Department of Navy and the...

  • NAVY | DRB | 2012_Navy | ND1200519

    Original file (ND1200519.rtf) Auto-classification: Denied

    Representation: By a vote of the Characterization shall HONORABLE.By a vote of the Narrative Reason shall .By a vote of the Reentry Code shall RE-1.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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible...

  • NAVY | DRB | 2010_Navy | ND1000518

    Original file (ND1000518.rtf) Auto-classification: Denied

    Nondecisional issues: The Applicant request that his characterization of service at discharge be upgraded to Honorable and that he receive an improved re-enlistment code. Decisional issues: The Applicant did not identify and issues regarding the propriety or equity of his discharge characterization of service or the reason or authority for separation. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided...

  • USMC | DRB | 2011_Marine | MD1101363

    Original file (MD1101363.rtf) Auto-classification: Denied

    The Board determined that relief based on this issue was not warranted. Relief denied.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 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. ” Additional...

  • NAVY | DRB | 2010_Navy | ND1000569

    Original file (ND1000569.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant desires to become eligible for VA benefits.2. Representation: orange county veterans service office 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...

  • USMC | DRB | 2013_Marine | MD1301052

    Original file (MD1301052.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 does not have the authority to change a narrative reason for separation to one indicating a medical disability or other...

  • USMC | DRB | 2010_Marine | MD1002102

    Original file (MD1002102.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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...

  • USMC | DRB | 2011_Marine | MD1100500

    Original file (MD1100500.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Therefore, the NDRB determined the characterization of service will change to Honorable with no change to the narrative reason for separation. ” 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.