Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001573

Original file (ND1001573.rtf) Auto-classification: Denied

ex-EMFN, 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)        19901029 - 19910722     Active:

Period of Service Under Review:
Date of Current Enlistment: 19910723     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19950928      Highest Rank/Rate: EM3
Length of Service : Y ear s M onth s 05 D a ys
Education Level:        AFQT: 75
Evaluation M arks:         Performance: 3.7 (2)     Behavior: 3.6 (3)       OTA: 3.6 (3)

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :

S CM :

SPCM:

- 19950 227 :       Art icle , (Wrongful use, possession, etc of a controlled substance ) , o/o 20041210, 2 specifications
         Specification 1: Wrongful distribution of marijuana , 1 gram
         Specification 2: Wrongful use of marijuana
         Sentence : RIR (to E-3) FOP RESTR HARD LABOR W/O CONF (45 days)

C C :

Retention Warning Counseling :

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. 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 .       Applicant contends his misconduct was purposeful due to mistreatment from the U.S. Navy medical system .
2 .       Applicant contends his misconduct was an isolated incident in 4 years of otherwise honorable service.

Decision

Date: 20 1 1 08 25             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. T he Board complete d 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 did not include any NAVPERS 1070/613 (Page 13) retention warnings or commanding officer nonjudicial punishment (NJP) , but did reflect special court-martial (SPCM) for violations o f the Uniform Code of Military Justice (UCMJ): Article 112a ( Wrongful use, possession, etc of a controlled substance, o/o 10 Dec 2004, 2 specifications: wrongful distribution of 1 gram of marijuana; wrongful use of marijuana ) . The Applicant did not have a pre-service drug waiver prior to entering the Navy. On 27 Feb 1995, the Applicant was found guilty of 2 specifications of violation of the UCMJ Article 112a, but was not awarded a punitive discharge (B ad Conduct Discharge ). The Applicant’s command subsequently administratively processed him for separation per the Nav al Military Personnel Manual (MILPERSMAN). When notified of administrative separation processing using the procedure on 20 Jun 1995 , the Applicant elected rights to consult with a qualified counsel and submit a written statement, but waived his right to an a dministrative separation board . The Applicant was separated on 28 Sep 1995 with an Under Other Than Honorable Conditions discharge.

Issues 1 - 2 : (Decisional) ( ) . The Applicant contends his misconduct was purposeful due to mistreatment from the U.S. Navy medical system , and that the misconduct was an isolated incident in 4 years of otherwise honorable 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 ervice in orde r to maintain good order and discipline ; violation of Article 112a meets this standard . The Applicant signed the Navy Drug Policy on 28 Oct 1990 (Alcohol and Drug Abuse Policy) , 29 Oct 1990 (Nuclear Power Field Statement of Understanding) , 29 Jul 1991 (USN Drug Policy) , 15 Oct 1991 (USN Drug Policy) , and 15 Dec 1994 (USN Drug Policy) . He was fully aware there is a zero - tolerance policy for drug abuse , and he acknowledged the consequences. While he may feel his back pain and perceived mistreatment by the Navy medical system were the underlying cause s of his misconduct, the record clearly reflects that his misconduct was willful and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. In fact, in a written statement he made prior to his discharge , he state d that he willingly smoked marijuana while in a car with acquaintances he had met at a bar earlier the same evening. A n Under Other Than Honorable Conditions discharge is warranted when a Sailor commits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service . The Applicant’s conduct f alls short of w hat is required for an upgrade. 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 the administrative separation p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. 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. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .

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

NAVY | DRB | 2010_Navy | ND1001541

Original file (ND1001541.rtf) Auto-classification: Denied

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 the U.S. Navy on 19 Oct 2006 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse). ” Additional Reviews : After a document review has been conducted, former members are eligible for...
USMC | DRB | 2013_Marine | MD1301747

Original file (MD1301747.rtf) Auto-classification: Denied

of controlled substances; also advised of being processed for administrative separation) 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...
USMC | DRB | 2010_Marine | MD1000257

Original file (MD1000257.rtf) Auto-classification: Denied

” 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. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
NAVY | DRB | 2009_Navy | ND0900822

Original file (ND0900822.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: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements: From Applicant: From Representation:From Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...
NAVY | DRB | 2010_Navy | ND1001563

Original file (ND1001563.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20060412 - 20061002Active: Period of Service Under Review: Date of Current Enlistment: 20061003Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20080701Highest Rank/Rate:SNLength of Service: Year(s)Month(s)29 Day(s)Education Level:AFQT: 84EvaluationMarks:Performance:2.0(1)Behavior:1.0(1)OTA: 2.00Awards and Decorations (per DD 214):Periods of...
NAVY | DRB | 2015_Navy | ND1500670

Original file (ND1500670.rtf) Auto-classification: Denied

Based on the Article 112a violation, processing for administrative separation is mandatory. 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 Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE). ” Additional Reviews : After a document review has been...
USMC | DRB | 2013_Marine | MD1300337

Original file (MD1300337.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 | 2009_Navy | ND0900540

Original file (ND0900540.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Based on a review of the record of evidence, statements and testimony of the Applicant, the Board determined the following: 1)there is sufficient evidence to substantiate a basis for discharge due to COSO as evidenced by the Applicant’s UA for over 30 days and missing ship’s movement; 2) there is sufficient evidence to substantiate a basis for discharge due to drug abuse as...
NAVY | DRB | 2011_Navy | ND1101231

Original file (ND1101231.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant did not identify any issues to the NDRB. The NDRB does not issue automatic upgrades.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 Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ”...
NAVY | DRB | 2009_Navy | ND0901841

Original file (ND0901841.rtf) Auto-classification: Denied

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. 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...

Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1001573

Similar Decisions