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NAVY | DRB | 2010_Navy | ND1000315
Original file (ND1000315.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20091104
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)        20070920 - 20080909     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080910     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090206      Highest Rank/Rate: AR
Length of Service : Y ear ( s ) M onth ( s ) 27 D a y ( s )
Education Level:        AFQT: 77
Evaluation M arks:         Performance: NOB ( 1 )      Behavior: 2 .0 ( 1 )        OTA: 2.00 (1)

Awards and Decorations ( per DD 214):      Pistol                   Periods of UA /C ONF :

NJP :              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:           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 11 effective 20 June 2005 until Present, Article 1910-130, Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.
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 seeks an upgrade to join the U.S. Army.
2 .        Applicant contends his discharge was improper as he had no alcohol - related problems in service and his pre-service alcohol incident had been waived during entry processing into the Navy.
3 .       Applicant contends he was discharged improperly as he was experiencing depression and anxiety as a result of his wife being a victim of a recent sexual assault.

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. 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 propri ety. The Applicant’s record of service did not contain any negative NAVPERS 1070/613 (Page 13) retention warnings, UCMJ Article 15 commanding officer’s nonjudicial punishment s , or trial s by court s -martial. The record did reflect the Applicant had been granted an enlistment waiver for two pre-service offenses related to minor possession of alcohol and assault. The Applicant’s service records were incomplete so the Board could not determine the circumstances surrounding his separation for erroneous entry (other). Additionally, the NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement, or request a General Court-Martial Convening Authority review .

Issue 1: (Nondecisional). The Applicant seeks an upgrade to join the U.S. 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 discharge was improper as he had no alcohol - related problems in service and his pre-service alcohol incident had been waived during entry processing into the Navy. In reviewing the Applicant’s service records, the Board noted the Applicant did receive a pre-service waiver during enlistment processing for charges of assault and minor possession of alcohol. Additionally, the records reflected that as a result of consultation with a physician, the Applicant had been referred to, but refused to attend (22 Jan 2009), substance abuse rehabilitation as prescribed by the S ubstance A buse R ehabilitation P rogram. As previously mentioned, the service records were incomplete, but based on the evidence available , the Board determined that the Applicant was not separated from service for refusing substance abuse rehabilitation or other alcohol - related issues. The narrative reason for discharge listed on his DD-214 states “erroneous entry (other) , ” which reflects that if the service had known of existing information or conditions related to the service member at the time of enlistment , the service member would not have been allowed to enter in to military service. Moreover, the se paration program designator code (Block 26) listed on the Applicant’s DD-214 is “JFC , ” which is specifically defined in the U.S. Navy Military Personnel Manual as “Erroneous Entry (Other) -- (not related to alcohol or drug abuse) (NO BOARD ENTITLEMENT) . ” After detailed review of all the available documentation , the Board found the Applicant’s discharge to be proper and this issue to be without merit.

: (Decisional) ( ) . The Applicant contends he was discharged improperly as he was experiencing depression and anxiety as a result of his wife being a victim of a recent sexual assault. Due to the Applicant’s service records being incomplete, the NDRB did not have the administrative separation package available to review the specific circumstances under which he was separated from service. The record did contain a NAVPERS 1070/613 (Page 13) retention warning for a positive drug test result for opiates during recruiting station pre-enlistment processing and the requirement s to further determine if the opiate levels resulted from a properly prescribed medication from a physician , what medical condition existed with the Applicant that required the medication , and whether the condition was a disqualifier for enlistment. The record also contained the Applicant’s separation physical exam in which the physician determined the Applicant to be fit for separation, though diagnosed with adjustment disorder with mixed emotional features and personality disorder. In reviewing discharges, the Board presumes regularity in the conduct of government affairs unless subst antial, credible information exists to rebut the presumption. Based on the information available and the lack of any evidence to the contrary , the Board determined the administrative discharge of the Applicant to be proper and equitable.

Additionally, the U.S. Navy Military Personnel Manual states that personnel separated during the first 180 days of continuous active duty service shall be discharged with an Uncharacterized discharge, unless an Honorable discharge is clearly warranted by the presence of unusual circumstances of personal conduct and performance and approved by the Secretary of the Navy. The Applicant’s service was not so meritorious as to warrant an Honorable discharge.

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 separation 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

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