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NAVY | DRB | 2010_Navy | ND1001798
Original file (ND1001798.rtf) Auto-classification: Denied

ex-SHSA, USN
Current Discharge and Applicant’s Request
Application Received: 20100713
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)        20031202 - 2004 1026     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 2004 1027     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200 9 0 529      Highest Rank/Rate: SHSN
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 3.2 ( 5 )      Behavior: 2.6 ( 5 )        OTA: 2.73

Awards and Decorations ( per DD 214):      (3) (3) FLoC

P eriods of UA /C ONF :

NJP:

- 20060302 :      Article ( UA, 20060104 – 20060124 , 20 days )
         Article (Missing movement)
         Article 92 (Failure to obey an order or regulation)
                  Awarded: Suspended:

-2006041 1 :      A rticle 86 [ UA, 20060309, 200603 29, 200603 30 ( 3 days )]
                  Awarded: 3 days confinement bread and water

-20060914:       Article (Failure to obey an order or regulation)
                  Awarded: Suspended:

-20090507 :      Article 112a (Drugs – Marijuana 25 ng/ml)
                  Awarded: RIR RESTR       Suspended: NONE

 SCM:     SPCM:    C C :

Retention Warning Counseling:

- 20060308 :       For violation of the UCMJ, Article 86 – unauthorized absence from 4 -24 January 2006; Article 87 – missing ship’s movement on 5 January 2006; and Article 92 – failure to obey a lawful general order, to wit: BUPERS Instruction 1750.10B, by wrongfully not carrying your military ID on your person at all times.




Administrative Corrections to the Applicant’s DD 214

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

          Date Entered AD This Period , should read: “ 04 10 27 ”
         “ 04 07 03 ”
          Bloc k 29, Dates of Time Lost During This Period, should read: “20060104 – 20060124, 20 days; 20060309, 20090329 – 20090330, 3 days”
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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.       Wants discharge upgraded to improve employment opportunities.
2 .       The Applicant contends his d isciplinary problems were a direct result of continuous abuse of alcohol and other mind-altering drugs.
3 .       The Applicant contends his discharge was inequitable , because his command was aware of his drug and alcohol problem but failed to intervene and ensure he received treatment.
4 .       Attended residential substance abuse treatment facility; post-service conduct warrants consideration.
Decision

Date: 20 1 1 0825             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. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and non-judicial punishments for o f the Uniform Code of Military Justice (UCMJ): Article ( Unauthorized absence , ), Article ( Missing movement , ), Article ( Failure to obey order or regulation, ) , and Article 112a (Wrongful use, possession of a controlled substance, 1 specification). The Applicant did not require a drug waiver to enter the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review .

: (Non-decisional) The Applicant wants his discharge upgraded to improve employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his d isciplinary problems were a direct result of continuous abuse of alcoho l and other mind-altering drugs . While he may believe that his abuse of drugs and alcohol was the underlying cause of his misconduct and was a mitigating factor , the record clearly reflects his willful misconduct and demonstrates he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Abuse of alcohol and drugs does not exonerate or mitigate misconduct. Relief denied.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because his command was aware of his drug and alcohol problem but failed to intervene and ensure he received treatment. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. The Board did not have the Applicant’s medical record and found no documentation in his service record indicating that his command was aware he had a drug and alcohol problem. There was no record that the Applicant had ever been counseled or screened for drug and alcohol abuse or dependency . Neither, was there any record that the Applicant had ever requested to go to rehabilitation, or was d enied the opportunity to get treatment for drug and alcohol abuse or dependency. Furthermore, the Applicant did not provide any evidence to support his claim. His statement alone does not overcome the government’s presumption of regularity in this case. Therefore, the Board concluded the Applicant’s discharge was proper and the characterization was equitable and consistent with that given others in similar circumstances. Relief denied.
: (Decisional) ( ) . The Applicant contends that since his discharge he has attended a residential treatment facility, suggesting his post-service conduct warrants consideration for upgrading his discharge to Honorable. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. The documentation the Applicant submitted along with the DD Form 293 was not sufficient to evaluate his post-service character and conduct. His efforts needed to have been more encompassing . H e could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the knowledge that c ompletion 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. 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 d ischarge 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 for more 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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