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NAVY | DRB | 2010_Navy | ND1000578
Original file (ND1000578.rtf) Auto-classification: Denied

ex-MMFA, USN

Current Discharge and Applicant’s Request
Application Received: 20091209
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600 PATTERN OF MISCONDUCT

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19930812 - 19930824     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19930825     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960222      Highest Rank/Rate: MMFA
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 46
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      w/ one bronze star

Periods of UA /C ONF : 19941023-19941108

NJP :
        
- 19940301 :       Article ( , )
         Article ( Disobey lawful order of a petty officer, )
         Article ( : sleeping in rack while in uniform, )
         Awarded : Susp ended:

- 19941127 :       Article , ( : , 23 Oct 1994-9 Nov 1994, 17 days)
         Awarded : Susp ended:

- 19950831 :       Article ( , : 0700, 11 Aug 1995-1130, 11 Aug 1995, 4 ½ hours )
         Awarded : Susp ended:

- 19950927 :       Article ( Wrongful use, possession etc of a controlled substance , : marijuana )
         Awarded : Susp ended:

S CM : SPCM: C C :

Retention Warning Counseling :

- 19940329 :       For violation of Articles 86, 91 , and 92.

- 19941127 :       For CO’s NJP for violation of Article 86 from 23 Oct 1994 to 9 Nov 1994.





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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.
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.        The Applicant contends his discharge was inequitable , because he self referred for a drug problem and was subsequently taken to non-judicial punishment and administratively separated.
2.       The Applicant contends his youth and immaturity during his enlistment mitigate his misconduct.
3. The Applicant contends his discharge was inequitable , because he was not given treatment for drug addiction prior to separation.

Decision

Date : 20 1 1 0217             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 NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article ( , ), Article ( Failure to obey the lawful order of a petty officer , ), Article ( , ) , and Article ( Wrongful use, possession , etc . of a controlled substance , : marijuana ). The Applicant a pre-service drug waiver . Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because he self - referred for a drug problem and was subsequently taken to non-judicial punishment and administratively separated. The record shows the Applicant self - referred to his command’s substance abuse counselor seeking assistance with drug addiction. His command placed him on the surveillance program and initiated steps to assist him. However, the Applicant continued to use marijuana while on this program and tested positive on several occasions following his self - admission in an apparent attempt to u se the self - admission program as a shield from disciplinary action while he continued to use drugs. The Applicant appealed his NJP for violation of Article 112a with a similar argument as his contention before the NDRB. The appeal was found to be without merit since voluntary se lf - referral does not exempt a member from disciplinary or adverse administrative action. The NDRB found the Applicant had a clear pattern of misconduct prior to his Article 112a violation. The NDRB found no evidence of impropriety or inequity in the record. Further, the Applicant’s command was unusually lenient, considering the nature and volume of misconduct, in pursuing an administrative separation vice special court-martial , which might have resulted in a punitive discharge and confinement. The NDRB deter mined an upgrade would be inappropriate.

: (Decisional) ( ) . The Applicant contends that his youth and immaturity contributed to making the wrong choice to use marijuana and engage in other misconduct while in the Navy. While the Appl icant may believe that he made poor decisions due to making youthful mistake s , the record clearly reflects the Applicant was responsible for his actions at the time of his misconduct . Further, the record reflects repeated and willful misconduct , that the Applicant was responsible for his behavior at the time of the offenses , and was subsequently found to have no potential for further service . Certain serious offenses warrant separation from the 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. The NDRB determined the Applicant's youth or age was not a mitigati ng factor in his misconduct. An upgrade would be inappropriate.



: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because he was never given treatment for drug addiction prior to separation. The record was incomplete with regard to this issue. The record clearly show s steps were being taken to assist the Applicant, but it is unclear if he was offered treatment for drug addiction. The NDRB presumes regularity in the conduct of governmental affairs . The Applicant provided no documentation or evidence to overcome this presumption. It is clear to the NDRB whether or not the Applicant received treatment for addiction, his characterization of service and narrative reason would have been the same. Therefore, the NDRB determined no change to be warranted.

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 .



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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