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NAVY | DRB | 2010_Navy | ND1001502
Original file (ND1001502.rtf) Auto-classification: Denied
ex-CSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20100603
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)        20000121 - 20000215 (Drugs)     Active:  
         USNR (DEP)        20000830 - 20000911

Period of Service Under Review:
Date of Current Enlistment: 2000 0912     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080515      Highest Rank/Rate: S N
Length of Service: Y ear s M onth s 04 D a ys
Education Level:        AFQT: 36
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.00

Awards and Decorations ( per DD 214):      NDSM , GWOTSM

Periods of UA / C ONF : NONE

NJP : 2

- 20010210:      Article 92 (Dereliction of Duty , willfully failed to perform proper watch)
         Article 134 (Underage drinking)
         Awarded: FOP RESTR EPD Suspended: NONE
- 20010816 :      Article 92 ( Failure to obey order or regulation)
         Awarded: RIR , FOP 2 months , RESTR , EPD
         S uspended: RIR , FOP 1 month (Vacated 20020213 due to continued misconduct)

S CM : NONE        CC: NONE

SPCM: 1

- 2002 09 02 :       Art icle 86 (Absence without leave , 3 specifications )
         Specification 1: UA, 20020301 - 20020321, 21 days
          Specification 2 UA, 20020506 - 20020508, 2 days
          Specification 2: UA, 20020617 - 20020624, 8 days
          Art icle 92 (Failure to obey order or regulation, underage drinking, 20020201)
         Article 112a (Wrongful use of controlled substa nce , 3 specifications )
         Specification 1: Marijuana, on or about January 2002
         Specification 2: Marijuana, on or about March 2002
         Specification 3: Marijuana, 20020326
         Sentence : BCD, FOP , CONF 119 days (20020903 - 20021103, 62 days)
         Convening Authority Action (15 September 2003): Except for the BCD, the sentence is approved and will be executed. Accused credited 29 days Allen Credit toward confinement due to pre-trial restriction .
 Retention Warning Counseling : 2

- 20010216:      For dereliction of duty and underage drinking

 - 20010816 :       For failure to obey order or regulation

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

          Block 12a, Date Entered AD This Period, should read: 00 NOV 1 3 ” (corrected for time lost)
         Blok 12c, Net Active Service this Period, should read: 07 06 03
Separation Authority, should read : “ MILPERSMAN 1910-126 ”
         “ JBK ”

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 11, effective 26 April 2005 until 11 June 2008, Article 1910-1 26 , SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - REVIEW ACTION .
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 92 and 112a.


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

Applicant’s Issues

 Nondecisional Issues: The Applicant seeks clemency through a change to his reenlistment code (R E -C ode ) an d upgrade in the characterization of his service at discharge in order to facilitate re-enlist ment in the Armed Forces. Additionally, the Applicant seeks multiple admin istrative corrections to his DD Form 214.

Decisional Issues: The Applicant did not identify any specific matters of propriety or equity for the NDRB’s consideration but does contend that his post-service efforts are worthy of consideration by the NDRB .

Decision

Date: 20 1 2 011 9            Location: Washington D.C .        R epresentation : none

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall COMPLETION OF REQUIRED 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 Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include eviden ce submitted by the Applicant. The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention-counseling warnings and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ) , specifically : Article 92 (Failure to obey order or regulation, 2 specifications) and Article 134 (Underage drinking) . Moreover, the Applicant’s service record documents one S pecial C ourt- M artial conviction for the following violations of the U CMJ: Article 86 (Absence without leave, 3 specifications [Specification 1: UA, 20020301 - 20020321, 21 days], [Specification 2 : UA, 20020506 - 20020508, 2 days] , and [Specification 3 : UA, 20020617 - 20020624, 8 days]) ; Article 92 (Failure to obey order or regulation - underage drinking, 20020201) , and Article 112a (Wrongful use , possession, etc of a controlled substance, 3 specifications [Specification 1: Marijuana, on or about January 2002], [Specification 2: Marijuana, on or about March 2002], and [Specification 3: Marijuana, 20020326 ]). T he Applicant ’s service record also documents that he enlisted with a pre-service waiver for illegal drug us e while in the Delayed Entry Program (marijuana) . Due to the requirement for a waiver to enlistment standards for pre-service illegal drug use, the Applicant was fully advised - and acknowledged in writing - the Navy ’s Zero Tolerance Policy regarding illegal drug use. Having been found guilty at trial by S pecial C ourt -M artial for the above-specified charges, the Military Judge awarded the Applicant a Bad Conduct Discharge , confinement for a period of 119 days, a reduction in rank to E-1, and a forfeiture of pay for 2 months.

On 02 September 200 2 , a Special Court- Martial adjudged a sentence of reduction to the pay grade of E-1 , confinement for a period of 119 days , a forfeiture of pay , and discharge from the U.S. Navy with a Bad Conduct Discharge. The record of trial was completed and authenticated by counsel and , following staff judge advocate review, was forwarded for initial action by the Convening Authority . The Convening Authority took action on the adjudged sentence on 15 September 2003 , specifying , “ Except for the Bad Conduct Discharge, the sentence is approved and will be executed .” Based on a review of the record of trial and all supporting documentation, the NDRB determined that the Convening Authority intended to state that “ The Sentence is approved, and except for the Bad Conduct Discharge, will be executed .” Not noticing the error in the Convening Authorit y’s specified actions, the Applicant was placed on appellate leave , he was service record transferred to the Navy and Marine Corps Appellate Leave Activity (NAMALA) , and the record of trial by court - martial was submitted to t he Navy and Ma r ine Corps Court of Criminal Appeals (NMC C CA) for the required appellate review of the Bad Conduct Discharge before being imposed .

The Applicant ’ s case was reviewed by an Appellate defense counsel who identified that the Convening Authority had NOT approved the Bad Conduct Discharge ( ref erence Convening Authority Action “Except for the Bad Conduct Discharge, the sentence is approved and will be executed . ”). Accordingly , on 22 October 2004 , the A ppellate D efense C ounsel submitted a Motion for Relief f rom Post- Trial Processing Error to the NM C CCA. The Appellate Court reviewed the motion on 17 November 2004 and concurred with the defense stating , “ W e note that the C onvening A uthority did not approve the adjudged B ad C onduct D ischarge. Since the adjudged sentence does not extend to death, dismissal, a D ishonorable or B ad C onduct D ischarge, or confinement for one year or more, the Court is without authority . ” The Appellate Court then granted the defense motion and the record of trial wa s returned to the applicable Staff Judge Advocate Gener al for appropriate disposition. For unknown reasons, the Applicant remained on the rol l s of the Appellate Leave Activity until a final action was taken on 15 May 2008, discharging the Applicant from the Naval Service with a General (Under Honorable Conditions) characterization of service and a narrative reason for discharge of “Court-Martial. ”

Nondecisional Issue s : The Applicant seeks a change to his reenlistment code (RE-Code) an d upgrade in the characterization of his service at discharge in order to facilitate re-enlistment in the Armed Forces to correct his past mistakes. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the A rmed F orces, and is not authorized to change a reentry code. Additionally, there is no requirement, or law, that grants re-characterization solely on the issue of facilitating reenlistment or employment opportunities or access to v eterans benefits programs. Regulations limit the NDRB’s review solely to a determination of the propriety or equity of the discharge action. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. The NDRB is not authorized to change the reentry code as requested; however, the Applicant may petition the Board for Correction of Naval Records using DD Form149 regarding this issue. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

Nondecisional Issues: Administrative errors : The Applicant contends there are numerous administrative errors on his DD Form 214. The NDRB did note administrative errors on the original DD Form 214 and will recommend to the Commander, Navy Personnel Command, that the DD Form 214 be corrected , as appropriate . See “ A dministrative Corrections to the Applicant’s DD 214 ” paragraph f or recommended corrective actions. In response to the Applicant ’s specific contenti ons, the following is provided:
         - Block 8b ( Station W here S eparated ): T his is the name of the command to which the member is attached when final discharge action is take n . Following the Special Court - Martial and completion of the adjudged confinement, t he Applicant was placed on appellate leave (voluntary then mandatory) and was subsequently transferred by service record book to the Navy and Marine Corps Appellate Leave A ctivity (NAMALA) to await the required Appellate Court review of the Bad C onduct D ischarge. As such, this was the command to which the Applicant was assigned when final action was taken . It is the administrative ly correct entry on the DD Form 214.
         - Block 12a ( Date Entered Active Duty This Period ): In accordance with the Applicant’s enlistment contract (DD Form 4/3), the Applicant confirmed his enlistment and took the O ath of E nlistment at the Jacksonville Florida Military Entrance Processing Station (MEPS) on 12 September 2000. This is the date of enlistment. He acknowledged this enlistment by his dated signature, which was witnessed by signature, on that same day. Due to “T ime L ost ” resulting from the period of confinement, the date entered active duty is brought forward on the DD Form 214 to reflect this lost time. The enlistment date of 1 2 Sept 2000 plus 62 days of time lost recalculates the Date Entered A ctive Duty this period to be 13 November 2000. Note: a correction to Block 12a also necessitate d a change to Block 12c ( Net Active Service This Period ) to reflect 07 years, 06 months, and 03 days total active servi c e .
         - Block 12b ( Separation Date This Period): This is the date that final action was taken on the discharge, not the date of court-martial, date of release from confinement, or release to voluntary or involuntary appellate leave. The record reflects the Applicant was in an Appellate Leave status until discharged by his command (NAMALA) on 15 May 2008.
         - Block 18 ( R emarks) - Appellate L eave dates : The r ecord of service documents that the Applicant requested voluntary Appellate Leave upon release from confinement, awaiting appellate review of the Bad Conduct Discharge. The d ate of approval and assig nment to (voluntary) Appellate L eave is 04 November 2002. The record further reflects that the Applicant signed and dated his Appellate Leave Statement of Understanding on that same date. The record further reflects that the Applicant was later placed on mandatory Appellate Leave with an effective date of 11 February 2004. Appellate L eave status terminated upon the date of discharge (15 May 2008). As such, Block 18 ( Remarks ) correctly reflects the Applicant’s total pe riod of Appellate Leave.

Decisional Issue (NDRB Board Review) ( Propriety /Equity) RELIEF WARRANTED. The Applicant did not identify any specific matters of propriety or equity for the NDRB’s consideration but does contend that his post-service efforts are worthy of consideration by the NDRB. In response to the Applicant’s request for review of his discharge action, t he NDRB conducted a detailed review of the discharge action to ensure the action was both proper and equitable. In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency , which is an act of leniency that reduces the severity of the punishment imposed. In response to the Applicant ’ s request, relevant and material facts, as stated in a court-martial, are presumed by the NDRB, to be established facts. However, since it was ultimately determined that the Applicant did not receive a Bad Conduct Discharge pursuant to a court-martial , this case was not considered as a matter of clemency but was considered under the broader standards of propriety and equity to determine if any factors in this particular case merited a change .

Propriety : As a matter of record, the Applicant was convicted at trial by S pecial C ourt -M artial for three specifications of illegal drug use, three specifications of absence without leave , and failure to obey order or regulations. In accordance with a pre-trial agreement, the Applicant pled guilty to the charges as specified before a trial by judge alone. Referral of charges to trial by S pecial C ourt -M artial was warranted, was within the C onvening A uthorit y’s authority, and was consistent with service norm s . T he trial judge awarded a Bad Conduct Discharge. By administrative error, the Convening Authority did not approve the B ad C onduct D ischarge; however, the y place d the Applicant on A ppellate L eave awaiting completion of the appellate review process as required for a Bad Conduct Discharge - believing that it had been approved, as adjudged . The Appellate C ourt review determined that the Bad Conduct Discharge had been dis approved , r eturn ing the record of trial for appropriate disposition by the owning command . The service record does not document what transpired between the Appellate review decision on 17 November 2004 and the date of discharge on 15 May 2008; however, the Applicant was discharge d on 15 May 20 08 with a General (U nder Honorable Conditions) characterization of service pursuant to a Court -Martial.

On review, the NDRB determined that the Command, and the Applicant, believed that a Bad Conduct Discharge had been awarded; the Applicant was placed on Appellate Leave and was transferred by service record to NAMALA, pending completion of the Appellate review action. The Navy and Marine Corps Court of Criminal Appeals reviewed the motion before it regarding the Bad Conduct Discharge and determined that the BCD (as adjudged) was disapproved during the review process. In effect, the Applicant should have completed his period of confinement and returned to dut y at his command or he should have been separated administratively in accordance with the appropriate A rticle of the Naval Military Personnel Manual ( MILPERSMAN ) .

In accordance with Article 1910-126 of the MILPERSMAN , it is the policy of the Navy that service members may be separated based on a Convenience of the Government for Review Action . By policy, this narrative reason for separation is appropriate if they are placed on A ppellate L eave awaiting review of a punitive discharge, and their punitive discharge is later set aside, suspended, remitted, or disapproved during the review process and their expiration of obligated service has not yet expired . Under this authority, t he least favorable characterization of service is General (Under Honorable Conditions) unless the C ommand recalls the member back to active duty and processes them for an U nder O ther T han H onorable C onditions discharge. Article 1910-126 further specifies that if the service member ’ s obligated active service has expired, the proper basis for discharge will be “ Expiration of Active Obligated Service . ” Based on the documentation of record, the NDRB determined that the Applicant was separated improperly. The Applicant’s obligated active service expired in Oct 2004 ; as such, by a vote of 5-0, the NDRB determined that the proper narrative reason for separation is Expiration of Required Active Service ( EAOS ).

Equity : Article 1910-104 (Separation by Reason of Expiration of Active Obligated Service) specifies that upon EAOS, the characterization of service will be Honorable, unless a General is warranted on the basis of the Enlisted Performance Evaluation System . In accordance with th is Article, a member is eligible for a characterization of his service as General (Under Honorable Conditions), if , during the current enlistment, the member ’s final overall trait evaluation average is 2.49 or below ( t his average is determined by averaging the individual trait averages of all evaluations during the current enlistment period ) . The Applicant’s service record documents an overall trait average during his service of 3.00. Accordingly, by a vote of 5-0, the NDRB determined that the proper characterization of the Appl icant’s service was Honorable. Relief warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the record of trial of the Special Court - Martial (to include all appeal activities) and the discharge process, the NDRB found the discharge was improper and that corrections were warranted. Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to COMPLETION OF REQUIRED SERVICE. The Applicant is directed to the Addendum for additional information.


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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