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NAVY | DRB | 2010_Navy | ND1000719
Original file (ND1000719.rtf) Auto-classification: Denied

ex-FCSA, USN
Current Discharge and Applicant’s Request
Application Received: 20100113
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)        19960827 - 19960828     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960829     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19990708      Highest Rank/Rate: FC3
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 81
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      Rifle

Periods of C ONF :

NJP:

- 19990521 :      Article (UA 19990419-19990506, 17 days)
         Article (Missing movement), 2 specifications
         Article 112a (Drugs – marijuana NG/ML NFIR)
          Awarded: Suspended:

- 19990617 :      Article (Provoking speeches or gestures)
         Article (Communicating a threat)
         Awarded: Suspended:

SCM:

- 19981218 :       Art icle (UA 19980830-19981118, 80 days)
         Art icle (Missing ships movement), 2 specifications
          Sentence :

SPCM:    C C :

Retention Warning Counseling :

- 19981211 :       For unauthorized absence and missing ship ’ s movement.

NDRB Documentary Review Conducted (date):        20040617
NDRB Documentary Review Docket Number:   ND03-01384
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”

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 :        

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 until
11 February 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 86 , 87, 112a, and 134 .


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

Applicant’s Issues

 1.        The Applicant contends his discharge characterization is too harsh for the misconduct of record.
2.       The Applicant contends his youth and immaturity at the time of his offenses contributed to making poor choices that resulted in his misconduct and the subsequent separation.
3. The Applicant contends his misconduct is mitigated by depression.
4. The Applicant contends he was experiencing family difficulties that contributed to his misconduct.

Decision

Date : 2010 1213             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) warning, for o f the Uniform Code of Mil itary Justice (UCMJ): Article 86 (Unauthorized absence: 17 days, surrendered), Article 87 (Missing ship ’ s movement , 2 specifications ), Article 112(a) (Wrongful use, possession , etc . of a controlled substance – marijuana), Article 117 (Provoking speech or gestures, 1 specification), and Article 134 ( General: Communication of a threat , 1 specification ) . Additionaly, the Applicant’s s ervice record reflects one summary court martial (SCM) for of the UCMJ: Article 86 (Unauthorized absence: 80 days, surrendered ) and Article 87 (Missing ship ’ s movement, 2 specifications) . The Applicant did not have 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 administrative separation was mandatory. When notified of the administrative separation process using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and to request an administrative board.

The Applicant provided documentation that included : , , , post-service medical records, and documentation of church service . The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board , on a case-by-case basis , to determine if the post-service conduct provide s a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.

: (Decisional) ( ) . T he Applicant contends his discharge characterization is too harsh for the misconduct of record. The record shows during separation proceedings that the Applicant was notified for separation due to drug abuse, a pattern of misconduct, and commission of a serious offense. Any of these reasons for separation normally result s in an unfavorable discharge characterization upon separation. The Applicant was guilty of several serious offenses including u nauthorized a bsence of more than 30 days, missing ship ’s movement, drug abuse, and communication of a threat. Any of these offenses alone could have resulted in a punitive discharge and confinement if adjudicated at special court-martial. The NDRB did not agree with the Applicant’s contention. The NDRB found the Applicant’s command was lenient in pursuing administrative separation rather than special court-martial. Due to the amount of misconduct and the serious nature of the offenses, the NDRB determined an upgrade would be inappropriate.

: (Decisional) ( ) . The Applicant contends his youth and immaturity at the time of his offenses contributed to making the poor choices that resulted in his misconduct and subsequent separation. While the Appl icant contends that he made poor decision s due to immaturity, the record clearly reflects that the Applicant was responsible for his actions at the time of his misconduct . Further more , the record reflects repeated and willful misconduct and that the Applicant was responsible for his behavior at the time of the offenses. C ertain 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. This usually results in an unfavorable characterization of discharge or, at a maximum, 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 di scharge but opted instead for the more lenient administrative discharge . The NDRB determined an upgrade would be inappropriate .

: (Decisional) ( ) . The Applicant contends his misconduct is mitigated by depression brought on by family difficulties. The NDRB carefully considered documentation submitted by the Applicant as well as his testimony. The NDRB recognizes the Applicant was dealing with considerable family difficulties , which appear to have led to depression and difficulties in the Navy. However, the NDRB determined that the number of offenses , coupled with the serious and protracted nature of the misconduct committed by the Applicant , was unable to be fully mitigated by the Applicant’s depression or mental state. The NDRB found an upgrade would be inappropriate in this case.

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 .


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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