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NAVY | DRB | 2010_Navy | ND1000193
Original file (ND1000193.rtf) Auto-classification: Denied
ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20091022
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)        19970206 - 19970 7 01     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19970702     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010614      Highest Rank/Rate: MM3
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 3.4 ( 5 )      Behavior: 3.6 ( 5 )        OTA: 3.17 (5)
Awards and Decorations ( per DD 214):      (2) (2)

Periods of UA /C ONF :

NJP:
- 19991215 :      Article (Unauthorized absence ) , 2 specifications
                           Specification 1: Absent from unit 19991 0 11-19991115
                           Specification 2: Absent from unit 19991127-19991201
                  Awarded : CCU(30 days) Susp ended:

- 20010419 :      Article (Wrongful use of controlled substance, cocaine, o/o 2001 0228 )
                  Awarded: Suspended:

SCM:     SPCM:    C C :

Retention Warning Counseling :
- 20000119 :       For unauthorized absence from unit 19991011 to 19991115 and 19991127 to 19991201.

Administrative Corrections to the Applicant’s DD 214
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 :        


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

Applicant’s Issues

 1 .       Applicant claims youth and immaturity , personal problems , and alcohol dependency led to his poor decisions that resulted in his discharge.
2 .       Applicant seeks upgrade due to post-service achievements.

Decision

Date: 20 10 12 09             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 identif ied two decisional issues for the Board’s consideration . T he Board complete d 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 NAVPERS 1070/613 (Page 13) retention warning for two periods of unauthorized absence (11 Oct-15 Nov 1999 and 27 Nov-01 Dec 1999) and for o f the Uniform Code of Military Justice (UCMJ): Article ( Unauthorized absence, 2 specifications: 11 Oct-15 Nov 1999, 34 days; 27 Nov-01 Dec 1999, 4 days) and Article ( Wrongful use, possession, etc of controlled substance, cocaine , o/o 28 Feb 2001 ) . The Applicant ’s record also revealed a pre-service waiver for an unspecified offense prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory regardless of grade or time in service. This usually results in an unfavorable characterization of discharge at a minimum or 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. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative separation board .

: (Decisional) ( ) . The Applicant claims youth and immaturity and personal problems led to his poor decisions that resulted in his discharge. While he may feel this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct as evidenced by two periods of UA and wrongful use of cocaine. The NDRB determined that the Applicant's youth or age was not a mitigating factor in his misconduct . Moreover, t here is no evidence in the record, nor did the Applicant provide any evidence , to indicate he attempted to u s e the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Navy Relief Society, Family Advocacy Programs, counseling services, or even the Red Cross. He did seek help with medical to address his problems with alcohol but failed to complete the prescribed outpatient substance abuse rehabilitation treatment plan by resuming alcohol consumption. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. An U nder O ther T han H onorable C onditions discharge is warranted when one or more acts or omissions constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Sailors, regardless of his grade and length of service , and falls far short of what is required for an upgrade to H onorable .

: (Decisional) ( ) . The Applicant seeks an upgrade due to post-service achievements . The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided documentation that included a personal statement; correctional custody counseling evaluation; certificate of completion of relapse prevention/ life skills training; continuing education certificates of completion (2); character reference letters (2); a tuition receipt; and medical record excerpts. Though not submitted by the Applicant, documentation could have included evidence of a drug-free life style; evidence of financial stability; certification of non-involvement with civil authorities; college or vocational school transcripts; documentation of community or church service; and marriage or child birth certificates (as applicable). Although the Applicant has made positive steps in turning his life around after his separation from the Navy, the evidence, to include documents submitted by the Applicant, does not support a finding of impropriety or inequity in the Navy’s administrative separation and resultant service characterization of the Applicant. 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 , documentary evidence submitted to the Board, and the administrative separation p rocess, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS 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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, effective 12 February 2001 until 15 July 2001,
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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