Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1001460
Original file (ND1001460.rtf) Auto-classification: Denied

ex-AOAA, USN
Current Discharge and Applicant’s Request
Application Received: 20100506
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)        20061121 - 20070220     Active:  
                  20070323 - 20070521

Period of Service Under Review:
Date of Current Enlistment: 20070522     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081116      Highest Rank/Rate: AOAN
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.00 ( 1 )     Behavior: 3.00 ( 1 )       OTA: 3.00
Awards and Decorations ( per DD 214):     

Periods of UA :

NJP:
- 20080929 :       Article 112 (Drunk on duty)
         Awarded: Suspended:

SCM:
- 20081016 :       Art icle ( Wrongful use, possession, etc., of controlled substances – THC 43 ng/ml )
         Sentence : (20081016 – unknown)

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:

          “ 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 :        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 2 June 2008 until 9 November 2009, 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 his discharge is inequitable and improper , because he was made to plea to a serious offense at Summary Court-Martial without proper coun seling or representation .
2 .       The Applicant believes his p ost-service conduct is worthy of consideration .

Decision

Date : 20 1 1 0505             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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 112 ( Drunk on duty ) and for of the UCMJ: Article ( Wrongful use, possession, etc., of controlled substances – THC 43 ng/ml ). The Applicant a pre-service drug waiver for using marijuana 10 times and possession of marijuana two times prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: Decisional) ( ) . The Applicant contends his discharge is inequitable and improper, because he was made to plea to a serious offense at Summary Court-Martial without proper counseling or representation. On 16 October 2008, the Applicant initialed a Record of Trial by Summary Court-Martial where he acknowledged that, after being given a reasonable time to decide, he did not object to trial by Summary Court-Martial. This same document lists all of his rights, including the right to plead not guilty and the right to obtain counsel. Further, the Applicant signed, on 16 October 2008, a Waiver of Right to Counsel for Summary Court-Martial. By signing, he acknowledged that he could not be tried without his consent, that he could be represented by civilian counsel at his own expense, and that he could request a military lawyer to represent him. The last sentence of this document, signed by the Applicant, states, “I consent to trial by Summary Court-Martial and I waive (give up) my right to be represented by a lawyer at the trial. ”

After his Summary Court-Martial, the Applicant was informed that he was being separated from the Navy for the following reasons: 1) Misconduct – Drug Abuse, 2) Misconduct – Commission of a Serious Offense, and 3) Misconduct – Pattern of Misconduct. The administrative separation process is a different and separate process from a court-martial. During administrative separation proceedings, the Applicant indicated, in writing on 16 October 2008, that he waived his right s to :
1) consult with counsel, 2) request a hearing before an Administrative Separation Board, and 3) submit a rebuttal to the separation. If the Applicant felt there were mitigating circumstances or that he was not guilty , it was his obligation to contest those charges at both the Summary Court-Martial and during separation proceedings. During a court-martial and a n A dministrative S eparation B oard, he would have had the opportunity to mount a defense against the charges. The Applicant was afforded all of his rights at not only the Summary Court-Martial but also during the administrative separation proceedings.

Additionally, misconduct for drug abuse or for commission of a serious offense often 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 S pecial or G eneral C ourt- M artial. The Applicant was found guilty of violation of Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Relief denied .

: (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. 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 good conduct in civilian life subsequent to leaving the service. The Applicant provided seven letters of character reference and stated that he is pursuing his masters degree and has stayed out of trouble. Unfortunately, h is efforts needed to have been more encompassing. Documentation to support an upgrade based on post-service conduct includes: verifiable continuous employment record, documentation of community or church service, certification of non-involvement with civil authorities, evidence of financial stability or letters of good standing from financial institutions (including banks and credit card companies), proof of a drug-free lifestyle, and attendance at or completion of higher education (official transcripts). 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. 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 . 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

Similar Decisions

  • USMC | DRB | 2011_Marine | MD1101822

    Original file (MD1101822.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. DEPARTMENT OF THE NAVYNAVAL...

  • NAVY | DRB | 2012_Navy | ND1200826

    Original file (ND1200826.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2013_Navy | ND1300578

    Original file (ND1300578.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Full relief by changing the narrative reason for separation to “blank” was not granted, because the Applicant’s Adjustment Disorder diagnosis met the requirements for separation under MILPERSMAN Article 1910-120.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found...

  • NAVY | DRB | 2011_Navy | ND1100046

    Original file (ND1100046.rtf) Auto-classification: Denied

    The Applicant submitted no documentation or evidence to support a post-service conduct review. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2012_Marine | MD1201170

    Original file (MD1201170.rtf) Auto-classification: Denied

    When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel and submit a written statement, but exercised his right to request an administrative board.However, the Applicant’s DD Form 214 reflects a separation code of HKA1, which indicates he waived his right to a separation board, and there is no evidence in the record of a separation board being conducted. Relief denied.Summary: After a thorough review of the...

  • NAVY | DRB | 2013_Navy | ND1300694

    Original file (ND1300694.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, 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. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2008_Navy | ND0801317

    Original file (ND0801317.rtf) Auto-classification: Denied

    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 conduct mitigates the reason for the characterization of discharge. At this time, the Applicant has not provided any documentation for the Board to consider during review for a post service upgrade. ” Additional Reviews : Subsequent to a document review, former members are...

  • NAVY | DRB | 2008_Navy | ND0801314

    Original file (ND0801314.rtf) Auto-classification: Denied

    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 conduct mitigates the reason for the characterization of discharge.At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. The Board determined an upgrade would be inappropriate.After a thorough review of the available...

  • NAVY | DRB | 2009_Navy | ND0901254

    Original file (ND0901254.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, Under Other Than Honorable Conditions, was an appropriate characterization considering the length of service, the UCMJ violations involved, and the lack of post-service documentation, and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information...

  • NAVY | DRB | 2009_Navy | ND0900090

    Original file (ND0900090.rtf) Auto-classification: Denied

    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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.To warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Board determined the characterization of service...