Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1000318

Original file (ND1000318.rtf) Auto-classification: Denied

ex-STG3, USN

Current Discharge and Applicant’s Request

Application Received: 20091103

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)        19941027 - 19950711     Active: 19980413 - 20011029 (HON)
Inactive: U SNR (DEP) 19980127 - 19980412
Period of Service Under Review:
Date of Current Enlistment: 20011030     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041217      Highest Rank/Rate: STG2
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 72
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.3 ( 4 )        OTA: 3.32 (4)
Awards and Decorations ( per DD 214):      Rifle Pistol (2) SPECIAL WARFARE NAVY PARACHUTIST
Periods of UA /C ONF :

NJP:
- 20040609 :      Article (Wrongful use of marijuana , NAVDRUGLAB msg 011927 Jun 04 , THC 56 ng/ml )
         Awarded: Suspended:

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 19980413 UNTIL 20011029 ”

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), 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 .

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

Applicant’s Issues

1. Applicant contends his in-service performance record warrant s consideration for a n upgrade to his discharge.

Decision

Date: 20 10 12 20 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 one decisional issue 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 did not reflect any negative NAVPERS 1070/613 (Page 13) counseling s or warnings but did include for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc of controlled substance, as evidenced by NAVDRUGLAB msg 011927 Jun 04, THC 56 ng/ml ) . The Applicant ’s record also reflected an honorable first enlistment in the Navy served from 13 Apr 1998 to 29 Oct 2001. The Board did note on the Applicant’s first enlistment physical that he had illegal ly use d marijuana approximately three times prior to his first enlistment in the Navy. Based on the UCMJ Article 112a violation, processing for administ rative separation is mandatory , per the U.S. Navy Military Personnel Manual ( MILPERSMAN), regar dless 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 an 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 a n administrative separation board proceeding .

: (Decisional) ( ) . The Applicant contends his in-service performance record warrants consideration for an upgrade to his discharge . The Applicant provided documentation that included three personal reference letters, four character witness statements, and a personal summary of action detailing his performance while deployed in support of Operation IRAQI FREEDOM. While conducting the review of his discharge, t he Board noted the Applicant’s excellent in-service record of performance. H is first enlistment (Apr 1998 to Oct 2001) included well-documented outstanding performance while executing his duties in the security forces , which resulted in an Honorable characterization of service. His second enlistment also documented his outstanding performance in the Naval Special Warfare community , detailing a high level of personal motivation, success in achieving assigned objectives, ability to take charge and lead others in varied situations, and exemplary performance in combat while executing naval special warfare missions in Iraq.

Nevertheless, d espite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline ; violation of Articl e 112a meets this standard. The Applicant signed the Navy Drug Policy on 27 Jan 1998. He was fully aware there is a zero tolerance policy for drug abuse , and he acknowledged the consequences. After referral to UCMJ Article 15 commanding officer ’s nonjudicial punishment (NJP) , which the Applicant accepted in lieu of refus ing NJP and demand ing trial by court-martial, he was found guilty and sentenced with a reduction in rank to E-4 and forfeiture of pay for two months. The record stated the Applicant expressed his desire to appeal the NJP punishment, but no records were found to indicate whether or not the Applicant filed an appeal and the subsequent response or actions taken by the commanding officer. Additionally, the Applicant was afforded an administrative separation board proceeding in which he was represented by government counsel. Upon conclusion, the Board found , by 3-0 vote , that the Applicant had illegally used marijuana; by 3-0 vote, that the Applicant should be separated from service; and by 2-1 vote , that the Applicant should receive a General (Under Honorable Conditions) characterization of service upon discharge. In the Seal Team Seven Commanding Officer comments portion of the Applicant’s administrative separation package , which was forwarded to Commander Naval Special Warfare Command, the commanding officer stated , “ The Applicant distinguished himself in combat and this performance is commendable. However, through the willful use of marijuana he has demonstrated poor judgment and disregard for the Navy’s Core Values and the high standards of the Naval Special Warfare Community. In matters of personal integrity, conduct, and trust, he dishonored his oath of enlistment and the Navy’s zero tolerance drug policy. Regulation does not allow me to reduce the ADSEP Board’s characterization of service determination , therefore I am recommending approval of separation wit h a General characterization. ”

The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. When a service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors , especially considering his grade , length of service , and job specialty rating, and falls short of what is required for an upgrade in t he characterization of service.

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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NAVY | DRB | 2010_Navy | ND1000318

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