Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001658

Original file (ND1001658.rtf) Auto-classification: Denied

ex-MASR, USN

Current Discharge and Applicant’s Request

Application Received: 20100622

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)        20011129 - 20020310     Active:

Period of Service Under Review:
Date of Current Enlistment: 20020311     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050224      Highest Rank/Rate: MA2
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 77
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 3.00

Awards and Decorations ( per DD 214):

Periods of UA :

NJP:

- 20040804 :      Article (Violate a written order by possessing drug paraphernalia) , o/o 200404
         Awarded: (to E-3) Suspended:

SCM:

SPCM:

- 20041114 :       Art icle (False statements) , 2 specifications, o/o 20040514, 20040804
         Art icle (Wrongful use of a controlled substance) , 3 specifications, o/o 200304, 200405
         Sentence : 120 days
         20041112 Pre-trial agreement (PTA): Applicant waived rights to Admin Board for AdSep

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:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, RIFLE EXPERT BADGE, PISTOL EXPERT BADGE ”

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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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 improve employment and education opportunities.
2.       Applicant contends his in-service performance warrants consideration for an upgrade.

Decision

Date: 20 1 1 06 03             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 . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service reflect ed for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order, regulation, possession of drug paraphernalia). The record also contained for of the UCMJ: Article 107 ( False official statement, 2 specifications ) and Article 112a (Wrongful use, possession, etc of a controlled substance, anabolic steroids, 3 specifications) . The Applicant’s command referred charges for trial by special court-martial (SPCM) on 29 Oct 2004. On 12 Nov 2004, the Applicant , after consulting with counsel, entered into a pre-trial agreement (PTA) with the court-martial convening authority in which he agreed to waive his right to an admin separation board with the understanding that the least favorable characterization of ser vice would be Under Other Than Honorable Conditions. On 14 Nov 2004, t he Applicant was found guilty of violating UCMJ Articles 107 and 112a at trial by SPCM. After the trial, the Applicant was notified of administrative separation using the procedure . The Applicant rights to consult with a qualified coun sel, submit a written statement , and request a n admin separation board as per the PTA . He was subsequently separated o n 24 Feb 2005 with an Under Other Than Honorable Conditions discharge .

Issue 1: (Nondecisional) The Applicant seeks an upgrade to improve employment and education opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. R egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his in-service performance warrants consideration for an upgrade. 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 . After initial enlistment accession processing and post-boot camp job specialty training in military law enforcement, the Applicant was especially aware of the zero tolerance policy for drug abuse and the requisite consequences of violating this policy. Though he contends that his in-service performance warrants consideration for upgrade, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. An Under Other T han 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 reflects his willful failure to meet the requirements of conduct expected of all Sailors , especially considering his job specialty , and f alls s hort of w hat is required for an upgrade .

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 . 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 | 2015_Marine | MD1500311

Original file (MD1500311.rtf) Auto-classification: Denied

As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.The Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB. Regarding the July 2013 Article 92 (Failure to obey order or regulation) NJP charges for plagiarism, the Applicant stated that he had not correctly attributed the original author in both his letter to the...
USMC | DRB | 2011_Marine | MD1100286

Original file (MD1100286.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. 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. Additionally, the NDRB has no authority to upgrade a...
USMC | DRB | 2011_Marine | MD1101964

Original file (MD1101964.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...
USMC | DRB | 2010_Marine | MD1000909

Original file (MD1000909.rtf) Auto-classification: Denied

The record also reflected that the Applicant had a pre-service drug waiver for using marijuana prior to entering the Marine Corps, and acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 16 May 1994. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of conduct expected of all Marines and falls far short of what is required for an upgrade in the...
NAVY | DRB | 2011_Navy | ND1100708

Original file (ND1100708.rtf) Auto-classification: Denied

Given the facts of the case during the second Special Court-Martial, the Judgefound the Applicant guilty of the charge as specified and adjudged confinement for a period of 6 months and to be discharged from the Naval Service with a Bad Conduct Discharge. Regulations limit the NDRB’s review solely to a determination of clemency based on matters regarding the equity of a discharge when considering a change to a punitive Bad Conduct Discharge. ” Additional Reviews : After a document review...
USMC | DRB | 2011_Marine | MD1100685

Original file (MD1100685.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to:DISCRETION OF THE NDRB Summary of Service Prior Service: Inactive:NONE Active:NONE Period of Service Under Review: Date of Current Enlistment: 19980618Age at Enlistment: Period of Enlistment: Years Months [6x2 ROEP]Date of Discharge:20050414Highest Rank:Length of Service:Inactive: Year(s)Month(s)04 Day(s)Active: Year(s)Month(s)00 Day(s) Appellate Leave: Year(s)Month(s)23 Day(s)Education Level: AFQT:64MOS:...
NAVY | DRB | 2009_Navy | ND0901519

Original file (ND0901519.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. 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 | DRB | 2010_Navy | ND1001501

Original file (ND1001501.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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 | 2010_Marine | MD1001819

Original file (MD1001819.rtf) Auto-classification: Denied

The command opted to prefer the new charges of misconduct to trial by special court-martial.The stated misconduct resulted in the special court-martial awarding a punitive Bad Conduct Dischargeand confinement for 6 months.The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most manage to serve their enlistment honorably. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record...
USMC | DRB | 2011_Marine | MD1100546

Original file (MD1100546.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. Paragraph 1105, DISCHARGE...

Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1001658

Similar Decisions