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NAVY | DRB | 2010_Navy | ND1000965
Original file (ND1000965.rtf) Auto-classification: Denied

ex-SHSR, USN
Current Discharge and Applicant’s Request
Application Received: 20100302
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)        20081016 - 20081215     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20081216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090611      Highest Rank/Rate: SHSR
Length of Service : Y ear ( s ) M onth ( s ) 25 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR                        

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :     S CM :    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:

          “ FRAUDULENT ENTRY (DRUG ABUSE) ”
        
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), Change 22, effective 16 May 2008 until 9 November 2009, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.

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

 Decisional issues : The Applicant contends that he was discharged improperly , because he was discharged with less than 180 days of active service. Additionally, the Applicant contends that his discharge was improper due to the use of statements made during private counseling.

Decision

Date: 20 1 1 0407            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 NDRB’s consideration. Additionally, the NDRB complete d a thorough review of the circumstances that led to the Applicant’s discharge , and the discharge process , to ensure the discharge met the pertinent standards of equity and propriety.

The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention - counseling warnings and no punitive or non- punitive actions for violations of the Uniform Code of Military Justice. The Applicant ’s military service record reflects no waiver to enlistment standards due to pre-service drug use . The Applicant completed the United States Navy “Illicit Behavior Screening Certificate” on 25 September 2008 , certifying that he had no history of drug use or any convictions for drug or alcohol related charges prior to his enlistment. Additionally, the Applicant successfully completed the U.S. Navy Zero Tolerance Policy f or Drug Abuse training on 14 October 2008.

The Applicant entered military service at age 22 on a four-year enlistment with no extension under a Ships Servicemen School guarantee for training ; he completed his guaranteed training and 5 months and 2 5 days of his four - year obligated service contract. The Applicant was discharged from the Naval Service by r eason of Defective Enlistments and Inductions - Fraudulent Entry i nto the Naval Service (Drub Abuse) in accordance with Article 1910-134 of the Naval Military Personnel Manual (MILPERSMAN). The Separation Authority determined that the document ation related to the Applicant’s divulgence of undisclosed pre-service drug use did establish the r equirement for discharge based on a fraudulent enlistment (Drug Abuse); that separation in the Applicant’s case was warranted; and further, that the proposed characterization of service - General (Un der Honorable Conditions ) - was warranted. On 05 June 200 9 , the Separation Authority directed the Applicant be discharged for the reason as stated and that he receive an RE-4 re-enlistment code - not recommended for re-enlistment.

The NDRB was unable to review the Applicant’s complete discharge package, as it was not included in his official service record. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. The separation code on the Applicant’s DD Form 214 indicates that a discharge hearing board was not warranted due to characterization of service.

: (Decisional) ( ) . The Applicant contends that he was discharged improperly , because he was discharged with less than 180 days of active service. Additionally, the Applicant contends that his discharge was improper due to the use of statements made during private counseling.

S ecretary of the Navy Instruction 5300.28D (Military Substance Abuse Prevention and Control) establishes the service policy that disclosures made by a member to substance abuse screening, counseling, or rehabilitation personnel relating to the member’s past substance use/abuse ( or possession incident to such use ) may not be used against the member in any disciplinary action under the UCMJ . However, t his provision does not preclude the use of disclosed information to establish the basis for separation in a separation proceeding or in taking other administrative action s. Furthermore, the policy establishes that t he information may not be used as the basis for characterizing a discharge if that the information is disclosed by the member for the express purpose of seeking or obtaining treatment or rehabilitation. In the absence of specific documentation by the Applicant regarding his contention of a private counseling, the NDRB presumed that his contention was related to disclosures he made to substance abuse counseling personnel.

In accordance with the MILPERSMAN, a n U nder O ther T han H onorable C onditions discharge is warranted when separation for misconduct or fraudulent enlistment is authorized and the circumstances of the case warrant it . The Applicant’s admittance to pre-service drug use, which he failed to disclose at the time of his enlistment, warranted mandatory administrative processing for separation pursuant to a Fraudulent Enlistment separation. In accordance with the MILPERSMAN, this type of separation would normally warrant consideration of an Under Other Than Honorable Conditions characterization of service at discharge. The command processed the Applicant for separation in accordance with the SecNav Instruction with a General (Under Honorable Conditions) characterization of service based on the Applicant’s willful failure to meet the requirements of his contract with the U.S. Navy . This characterization was based on the commission of the act of fraudulent enlistment , and did not take into account the specific nature of the fraudulent enlistment, which would normally have warranted an Under Other Than Honorable Conditions characterization at discharge .

 The NDRB determined that the command did not use the divulgence of pre-service drug use in the characterization of the discharge. A s such, the NDRB determined that the Applicant’s contention of a violation of his private counseling and a resulting inequity in the discharge is without merit. R elief as requested, denied.

By regulation, members notified of an intended recommendation for discharge within the first 180 days of enlistment are eligible for an U ncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a servicemember’s performance or conduct that merit another characterization. A single adverse incident that is prejudicial to good order and discipline may be used to characterize a Sailor’s overall service ; t he incident does not have to result in punishment (nonjudicial punishment, court-martial, or civil conviction). An U nder O ther T han H onorable C onditions discharge is warranted when separation for misconduct or fraudulent enlistment is authorized and when characterization under other than honorable conditions is warranted by the circumstances of the case . Based on a review of the evidence of record and performance evaluations, t he NDRB determined that the Applicant ’ s performance and conduct , which forms the primary basis for determining the character of his service, reflect ed a willful failure to meet honorably the requirements of his contract with the U.S. Navy. Therefore , the NDRB found a General (Under Honorable Conditions) characterization of service at discharge to be appropriate. Accordingly, r elief is not 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 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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