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NAVY | DRB | 2010_Navy | ND1000845
Original file (ND1000845.rtf) Auto-classification: Denied

ex-MM1, USN
Current Discharge and Applicant’s Request
Application Received: 20100216
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)        19940131 - 19940313     Active:   19940314 - 19980312 HON
                                    USN 19980313 - 2 0020225 HON

Period of Service Under Review:
Date of Current Enlistment: 20020226     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080225      Highest Rank/Rate: MM1
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 4.3 ( 8 )      Behavior: 3.5 ( 8 )        OTA: 4.07

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP:     SCM:     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 29 April 2005 until
1 June 2008, 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 .       The Applicant contends that his DD Form 214 was issued in error and that he was not separated for Misconduct Drugs under an Other Than Honorable Discharge and that the information in Block 19 of the DD 214 (nearest relative-spouse) is not his spouse.

Decision

Date: 20 1 1 0303 Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall COMPLETION OF REQUIRED ACTIVE SERVICE .
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 discharge if such change is warranted. In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identified one decisional issue to the NDRB. The NDRB completed a thorough review of the circumstances leading to discharge, and the discharge process, to ensure discharge met the pertinent standards of both equity and propriety.

The Applicant’s official service record reflects a pre-service waiver for drug use (marijuana) and signed documentation attesting to fully understanding the U nited S tates Navy Drug and Alcohol Abuse Polic ies . The Applicant enlisted in the United States Navy with a guarantee of Boiler Technician training program . U pon completion of training , he was further assigned to duty with the Naval Surface Forces. The Applicant’s service record included t wo prior periods of continuous honorable service dating from March 1994 to February 2002.

The Applicant’s service record includes no negative NAVPERS 1070/613 (Page 13) retention-counseling warnings during his service with the exception of two Personal Fitness Assessment Test failures in a prior enlistment. His service record includes no during any of his enlistment s for o f the Uniform Code of Military Justice (UCMJ) and no punitive punishment s throughout his career.

The Applicant ’ s official service record reflects no offenses committed and no administrative separation processing , however, his DD 214 reflects an administrative separation from the Naval Service for Misconduct (Drug Abuse) with an Under Other Than Honorable Conditions characterization of his service during his current enlistment and an RE-4 re-enlistment code (not recommended for re-enlistment) . The Applicant was discharged as an MM1 – the highest rank he held in the Naval Service.

For the Applicant’s information, t he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code. The Applicant must petition the Board for Correction of Naval Records (BCNR) using standard DD Form 149. When requesting a change, the Applicant should be prepared to provide as much supporting documentation as possible regarding his reasons for justification for reinstatement. The BCNR’s address is:
 Board for Correction of Naval Records (BCNR),
2 Navy Annex,
Washington, DC 20370-5100.
Further information may be found online at : http://www.donhq.navy.mil/bcnr/bcnr.htm .

: (Decisional) ( ) . The Applicant contends that his DD 214 was issued in error ; he was not separated for Misconduct Drugs with an U nder Other Than Honorable Conditions d ischarge and that the information in Block 19 of the DD 214 (nearest relative-spouse) is not his spouse. The Applicant contends that he completed his required active duty service and was separated from active duty honorably.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut that presumption, to include evidence submitted by the Applicant. The Applicant submitted a copy of his marriage certificate validating the marriage to his wife of record as reflected in his service record, but improperly annotated on his DD 214.

The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects three period of honest and faithful service to his nation in his current enlistment . His official service record documents no misconduct throughout 13 years and 11 months of service. His final enlisted performance evaluation document his completion of required active service under honorable conditions and classif ies him as a must promote while aboard the USS NIMITZ. The final enlisted performance evaluation was signed on 22 Jan 08 as the Applicant departed the Naval Service on leave at home awaiting his DD 214. The Applicant was separated in absentia by Personnel Support Detachment Afloat –West. The NDRB verified with OPNAV N135F ( Navy Alcohol and Drug Abuse Prevention, Drug Detection , and Deterrence Office ) that the Applicant did not have a positive drug test on record with either the Forensic Toxicology Drug Test Laboratory or in the Alcohol and Drug Management Information Tracking System as used by the Navy to track all positive urinalysis .

Based on the unique circumstance of the case and the noticeable lack of any documented misconduct in the Applicant’s record of service, the NDRB found the Applicant's discharge , as reflected on his DD 214, was im proper . The Applicant was improperly separated by the servicing PSD. Accordingly, the NDRB determined that the Narrative Reason for Separation was COMPLETION OF REQUIRED ACTIVE SERVICE and the characterization of service warranted was HONORABLE. An upgrade is appropriate ; relief , as requested , is provided .

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 change to COMPLETION OF REQUIRED ACTIVE SERVICE .


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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