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NAVY | DRB | 2010_Navy | ND1001710
Original file (ND1001710.rtf) Auto-classification: Denied

ex-MASN, USN
Current Discharge and Applicant’s Request
Application Received: 20100629
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)        200 507 2 9 - 20060 228     Active:  
         USNR (DEP)       20061024 - 20061107

Period of Service Under Review:
Date of Current Enlistment: 20061108     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090310      Highest Rank/Rate: MASN
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 78
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 3.0 ( 3 )        OTA: 3.17
 Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP:     SCM:     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:

          “ GKK ”
        
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 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.        Applicant contends his discharge was inequitable/too harsh and that personal family problems and alcohol use contributed to and mitigated his misconduct .
Decision

Date: 20 1 1 09 08             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 did not include any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishment (NJP), or trial by courts-martial. The record did reveal that the Applicant made a statement (12 Oct 2008) to a fellow military police co - worker that he had possibly taken an illegal drug (small green pill with logo impression on the top) while heavily intoxicated at a party the evening before. The co - worker reported the conversation to the chain of command a pproximately two days later. On 14 Oct 2008, within 3 days of the suspected illegal drug in g estion, the Applicant submitted to a urinalysis test , which came back negative for illegal substances. On 10 Dec 2008, the Applicant was notified of pending NJP proceedings for violation of UCMJ Article 112a (Wrongful use, possession, etc of a controlled substance, methamphetamine, as evidenced by Applicant’s co - worker testimony and CID investigation and interview with the Applicant). After consulting a qualified counsel, the Applicant elected to refuse NJP and demanded trial by courts-martial. On 30 Dec 2008, the Applicant was advised of pending administrative separation processing, which is mandatory per the Naval Military Personnel Manual (MILPERSMAN) . When notified of administrative separation processing using the procedure, the Applicant elected to exercise rights to consult with a qualified coun sel, submit a written statement , and request an administrative separation board proceeding. On 5 Feb 2009, the administrative board proceedings concluded with the following results: (By 3-0 vote) the Applicant committed misconduct by wrongfully using a controlled substance; (By 3-0 vote) the Applicant should be separated from the Navy; (By 3-0 vote) the Applicant should receive a General (Under Honorable Conditions) discharge. On 9 Feb 2009, t he Applicant’s defense counsel submitted a letter of deficiency claiming that : a) the administrative board did not properly adhere to the MILPERSMAN when deciding whether to retain or separate the Applicant and b) the preponderance of the evidence standard was not met by the government. On 20 Feb 2009, the Separation Authority addressed the defense counsel assertions made within the letter of deficiency and found that: a) the counsel improperly referenced an outdated and obsolete version of the MILPERSMAN and that the administrative board did comply with the appropriate MILPERSMAN version and b) that the preponderance of the evidence was met in the Applicant’s statement to his co - worker , which included the fact that he had “rolled” with another individual the night prior, had previously taken E csta s y prior to service , was familiar with its effects, and that the Applicant had offered to buy and distribute E csta s y to another Sailor. After reviewing all the available evidence, the Separation Authority determined that impropriet y did not occur during the administrative board proceeding s , and he subsequently directed the Applicant be separated as recommended by the administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable/too harsh and that personal family problems and alcohol use contributed to and mitigated his misconduct. 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 USN Drug Policy on 29 Jul 2005, 12 Jan 2006, and 24 Jan 2006 . He was fully aware there is a zero - tolerance policy for drug abuse , and he acknowledged the consequences. While he may feel that personal stressors and alcohol use were the underlying cause s of his misconduct, the record clearly reflects his misconduct was willful, as evidenced by his pr e -service use of and

familiarity with E csta s y 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. When a service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. After considerable eviden t iary review and personal testimony, the administrative separation board recommended a General (Under Honorable Conditions) discharge , which is warranted when a Sailor’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant ’s failure to meet the requirements of conduct expected of all Sailors , especially considering his rating and occupational experience, and f alls short of w hat is required for an upgrade to Honorable. 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 . 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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