Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001570

Original file (ND1001570.rtf) Auto-classification: Denied

ex-AD3, USN

Current Discharge and Applicant’s Request

Application Received: 20100611

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)        19941013 - 19950306     Active: USN 19950307 - 1999 1 105 HON

Period of Service Under Review:
Date of Current Enlistment: 19991106     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010223      Highest Rank/Rate: AD3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 3.24

Awards and Decorations ( per DD 214):      Pistol (2)

Periods of UA /C ONF :

NJP:

- 20010212 :       Article ( Wrongful use of controlled substance )
         ( *extracted from evaluation report remarks for period 20000616 - 20010220)
         Awarded : NFIR Susp ended: NFIR

SCM:     SPCM:    C C :

Retention Warning Counseling :

- 19950305 :       For : fraudulent induction in your failure to disclose required basic enlistment eligibility information. [ Marijuana use 5 times, 3/93 - 2/95 while in DEP]

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

                  Block 18, Remarks, should read: “Continuous honorable active service from 19950307 to 19991105 ”
                  “ MISCONDUCT (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 31, effective 12 February 2001 until
15 July 2001, 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.        Applicant seeks an upgrade to obtain veteran education benefits.
2.       Applicant contends his misconduct was an isolated incident in 6 years of service.

Decision
Date: 20 1 1 08 18             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 Board ’s consideration . Though the Applicant’s service records were incomplete, t he Board co nducted 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 NAVPERS 1070/613 (Page 13) retention warning (Mar 1995) for fraudulent enlistment relating to undisclosed marijuana use (5 times) while in the D elayed E ntry P rogram (DEP) and for o f the Uniform Code of Military Justice: Article ( Wrongful use, possession, etc of a controlled substance, extracted from 16 Jun 2000-20 Feb 2001 evaluation report, specifics NFIR). There was no evidence of trial by courts-martial. The record also reflected the Applicant admitted to pre-service marijuana use (last use Sep 1993) and a DUI (Jun 1993) during his enlistment accession processing. Based on the Article 112a violation, processing for administ rative separation is mandatory per the Naval Military Personnel Manual . The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant exercised or waived rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The Applicant was separated from t he Navy on 23 Feb 2001 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

: (Nondecisional) The Applicant seeks an upgrade to obtain veteran education benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in 6 years of service. Despite a service member’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the N aval S er vice in order to maintain good order and discipline ; violation of Article 112a meets this standard . The Applicant admitted to illegal marijuana use prior to his enlistment in Oct 1994. Additionally, in Mar 1995, he received a waiver for fraudulent enlistment due to not revealing illegal use of marijuana (5 times) while in the DEP program. The Applicant was fully aware there is a zero - tolerance policy for drug abuse , and he acknowledged the consequences. While he may feel his in-service illegal drug use was an isolated incident , the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and f alls short of w hat is required for an upgrade. Relief d enied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries , 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

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NAVY | DRB | 2010_Navy | ND1001570

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