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NAVY | DRB | 2010_Navy | ND1001909
Original file (ND1001909.rtf) Auto-classification: Denied

ex-AMAN, USN
Current Discharge and Applicant’s Request
Application Received: 20201007
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)        19990324 - 19990421     Active:   19990422 - 20031120 HON

Period of Service Under Review:
Date of Current Enlistment: 20031121     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050909     Highest Rank/Rate: MA3
Length of Service : Y ear M onth s 21 D a ys
Education Level:        AFQT: 45
Evaluation M arks:         Performance: 4.0 (2)      Behavior: 3.5 (2)        OTA: 3.69

Awards and Decorations ( per DD 214):      AFEM SSDR(4) MUC NAVY “ E” GCM NDSM NUC

Periods of UA /C ONF :

NJP: 1

- 20050728 :      Article 112a (Wrongful use of controlled substance, Methamphetamine, 1157 ng/ml, NAVDRUGLAB msg 131536Z JUL 05)
         Awarded: RIR FOP RESTR EPD Suspended:

SCM: NONE       

SPCM:   

C C :     

Retention Warning Counseling : NONE

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: “ ARMED FORCES EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON (4), MERITORIOUS UNIT CO M MENDATION, NAVY "E" RIBBON, GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, NAVY UNIT COMMENDATION, LETTER OF COMMENDATION ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19990422 TO 20031120 ”

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 11, effective 29 April 2005 until 1 June 2008, 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

 Decisional Issues: The Applicant contends that his honorable service outweighs his misconduct of record; as such, the characterization of service received at discharge was inequitable . Additionally, t he Applicant believes that his post - service conduct is worthy of consideration.
Decision

Date: 20 1 1 0929            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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identified tw o decisional issues for consideration by the NDRB. Additionally, the NDRB completed a thorough review of the circumstances leading to discharge, and the discharge process, to ensure discharge met the pertinent standards of both equity and propriety. The Applicant’s service record included no NAVPERS 1070/613 (Page 13) retention-counseling warnings during his current enlistment period of service under review and one for o f the Uniform Code of Military Justice (UCMJ) : specifically, the Applicant was found guilty of violating Article 112(a) (Wrongful use, possession, etc of a controlled substance – methamphetamines) . The Applicant’s enlistment record reflects his entry into military service with pre-service waiver s for drug use – marijuana. Furthermore, t he Applicant’s official service record reflects signed documents attesting to fully understanding the U . S . Navy Drug and Alcohol Abuse Policy . T he Applicant’s service record document s a positive urinalysis result from the Naval Drug Screening Laboratory – methamphetamines (1,157 ng/ml). T he Applicant’s violation of Article 112 (a) r equired mandatory processing for separation in accordance with the Navy ’s Zero Tolerance Drug Policy.

W hen notified of administrative separation processing using the notification procedure, the Applicant elected to waive his rights to consult with a qualified legal counsel, to submit written matters to the Separation Authority, and to request an administrative board hearing be held to present his case for retention . The Separation Authority reviewed the evidence of record and determined that a preponderance of the evidence supported the basis for separation: Misconduct ( Drug Abuse ) per paragraph 1910-146 of the Nav al Military Personnel Manual (MILPERSMAN). As such, the Separation Authority directed the Applicant be discharged from the Naval Service and that his current period of enlistment reflect an Under Other Than Honorable Conditions characterization of service with a re-enlistment code of RE-4 (not rec ommended for reenlistment).

(Decisional Issues ) ( ) PARTIAL . The Applicant contends that his honorable service outweighs his misconduct of record; as such, the characterization of service received at discharge was inequitable. A dditionally, the Applicant believes that his post - service conduct is worthy of consideration.

The Applicant contends his discharge be upgraded based on his record of service, which was honorable apart from an isolated incident of misconduct. The NDRB commends the Applicant for completing his first enlistment period with an Honorable characterization of service; however, each period of enlistment is an independent obligation and characterization of service is determined for that specific period of enlistment. Despite a Sailor’s prior record of service , though, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline - violation of Article 112(a) meets this standard. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge , but opted instead for the more lenient nonjudicial punishment and administrative discharge. The record clearly documents willful misconduct and demonstrated that he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The NDRB determined an upgrade would be inappropriate.

The NDRB considers 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. The Applicant provided several letters of reference and documentation regarding his employment, finances, education and training, health and medical records, social services counseling for troubled youth , criminal records, family and personal status, and community service. Submission of these items alone does not guarantee an upgrade from an unfavorable discharge; each discharge is reviewed by the NDRB, on a case-by-case basis. After a careful review of the Applicant ’ s post-service documentation and official service record, and taking into consideration his personal statement, and the facts and circumstances unique to this case, the NDRB determined the quality of the Applicant’s service generally did not meet the standard of acceptable conduct and performance for N aval personnel to warrant an Honorable characterization. However, the NDRB determined the Applicant’s service had been honest and faithful - but with significant negative aspects of his conduct outweigh ing the positive aspects of his military record . A s such, the NDRB determined that partial relief was warranted , based on equitable grounds. By majority, the NDRB voted to upgrade the discharge characterization to General (Under Honorable Conditions), but voted unanimously not to change the narrative reason for separation. Full relief to Honorable was not granted due to the documented misconduct of drug abuse.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process, and additional documentation provided by the Applicant, the NDRB found the discharge was proper, but not equitable. Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) while the narrative reason for separation shall remain (DRUG ABUSE) . 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 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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