Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001164

Original file (ND1001164.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20100408

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: S ECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 19940808     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950411      Highest Rank/Rate: SR
Length of Service:
         Inactive:        Year(s) Month(s) 01 D ay(s)
         Active: Year(s) Month(s) 05 D ay(s)
Education Level:        AFQT: 54
Evaluation M arks:         Performance: 3.6 ( 1 )      Behavior: 2.8 ( 1 )        OTA: 3.40

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP:     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:

         “ MILPERSMAN 3630620 ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996,
Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 a General (Under Honorable Conditions) discharge does not accurately reflect her character of ser vi ce an d , therefore , she r equest s the characterization be upgrade d to Honorable and narrative reason changed to Secretarial Authority.
2.       The Applicant contends t here is no physical evidence to support the allegations of drug abuse , and she was never found guilty of drug abuse or possession.
3 .       The Applicant contends her p ost - service conduct warrants consideration.

Decision

Date: 20 1 1 0519             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 discharge 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 did not include any NAVPERS 1070/613 (Page 13) warnings, non-judicial punishments, or trials by court-martial for violation of the Uniform Code of Military Justice . However, documentation found in the Applicant ’s service record indicates she identified herself to the command’s Drug and Alcohol Program Advisor as a drug user . She was subsequently referred to the Naval Station San Diego Branch Clinic to be screened for substance a buse and dependency. According to Navy regulations, her a dmission to illegal drug use amounts to a finding of guilt and mandates processing for administrative separation. The Applicant did not have a pre-service drug waiver for using illegal drugs prior to entering the Navy . However , documentation found in her medical record indicates that , during the substance abuse/dependency screening, she admitted to using illegal drugs prior to entering the N avy. Based on her admission to wrongfully using controlled substances while in the Navy , her command processed her for administrative separation. When notified of administrative separation processing using the procedure, the Applicant elected right to consult with a qualified counsel , but waived her right s to submit a written statement and request a General Court-Martial Convening Authority review.

: (Decisional) ( ) . The Applicant contends a General (Under Honorable Conditions) discharge does not accurately reflect her character of service and therefore requests the characterization be upgraded to Honorable and the narrative reason changed to Secretarial Authority. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline. D rug use is one such offense. According to regulations , a member must be mandatorily processed for separation for misconduct due to drug abuse based upon one or more military offenses or civil convictions (including actions that amount to findings of guilt, i.e., admission or entry in pretrial intervention or similar programs with civilian authorities) for d rug abuse. The Applicant admitted to illegal drug use and refused further treatment. As a result, her command processed her for administrative separation. T he characterization of service for members separated for drug abuse is most often Under Other Than Honorable C onditions , however, her command opted for the more lenient General (Under Honorable Conditions) discharge. The NDRB found the discharge process proper and the characterization and narrative reason equitable and consistent with the characterization of discharge given others in similar circumstances . Relief denied.

: (Decisional) ( ) . The Applicant contends that t here was no physical evidence to prove the allegations of drug abuse and that she w as never found guilty of drug abuse or possession. According to regulations, a member must be mandatorily processed for separation for misconduct due to drug abuse based upon one or more military offenses or civil convictions (including actions that amount to findings of guilt, i.e., admission or entry in pretrial intervention or similar programs with civilian authorities) for drug abuse. Thus , the Applicant’s admission to illegal drug use amounts to a finding of guilt that negates the necessity for a trial by court-martial and physical evidence for proof beyond a

reasonable doubt. Furthermore, the government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her belief that her discharge was improper due to lack of physical evidence . The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. The NDRB found the discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends that h er post-service conduct warrants consideration for upgrading the characterization of her discharge to Honorable and changing the narrative reason to S ecretarial A uthority. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. T he documentary evidence the Applicant submitted along with the DD Form 293 was not sufficient for the Board to thoroughly evaluate h er post-service character and to determine if her in-service misconduct was an aberration and not indicative of h er overall character. Relief denied.

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 .

Since 15 years from the date of the Applicant’s discharge has elapsed, s he is not eligible for a personal appearance hearing with the NDRB. The Applicant may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 for further review using DD Form 149.

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 | ND1001164

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