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NAVY | DRB | 2010_Navy | ND1002269
Original file (ND1002269.rtf) Auto-classification: Denied

ex-GMSR, USN
Current Discharge and Applicant’s Request
Application Received: 20100915
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)        20060731 - 20070402     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20070403     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100105      Highest Rank/Rate: GSMN
Length of Service : Y ear ( s ) M onth ( s ) 3 D a y ( s )
Education Level:        AFQT: 69
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 3.21

Awards and Decorations ( per DD 214):      Rifle Pistol (2) NEM ACM

Periods of UA /C ONF :

NJP :

- 20090618 :      Article (Drunken or reckless operation of vehicle aircraft or vessel on or about 20090409)
         Awarded: Suspended:

- 20091102 :      Article (Failure to obey a lawful order, 4 specifications )
         Awarded: Suspended:

S CM :    SPCM:    Retention Warning Counseling:

C C :

- 20090828 :       Offense: DUI
         Sentence : 90 days DUI 1 st Offender Program, fined $3,266.00, 2 days in jail, and 36 month probation

Administrative Corrections to the Applicant’s DD 214

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

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ HKQ ”
          “ MISCONDUCT (SERIOUS OFFENSE) ”
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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 92 and 111 .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant wants his discharge upgraded so he can use the GI Bill f or college.
2 .       The Applicant contends his discharge was unjust and inequitable , because the consequences of using Spice w ere not fully explained to him.
 3 .       The Applicant contends his discharge was unjust and inequitable , because he was discharge d for using Spice , a legal s ubstance in the United States.
4 .       The Applicant contends his record of service, as evidenced by his service in Guantanamo Bay and Afghanistan, two Navy Achievement Medals, and being an outstanding asset to his commands, warrants consideration for upgrading his discharge.
Decision

Date: 20 1 1 1214             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 violations o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 4 specifications) and Article 111 (Drunken or reckless operation of a vehicle, 1 specification). Based on the offense s committed by the Applicant, command administratively processed for separation. 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 .

: (Non - decisional) The Applicant wants his discharge upgraded so he can use the GI Bill for college. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement, or law, that grants re-characterization solely on the issue of obtaining v eterans benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief. The Board has no authority to upgrade a discharge for the sole purpose of making an Applicant eligible to receive the GI Bill or enhancing educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was unjust and inequitable , because the consequences of using S pice were not fully explained to him. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that the consequences of using S pice were never fully explained to him. The Applicant’s statement on his DD Form 293 about being told by his chain of command that the consequences of using Spice would not be “nice” indicates that he knew that the use of Spice was against regulations. T he NDRB concluded that the Applicant’s command provided sufficient information for its members to understand that using S pice was against Navy policy. The NDRB also concluded the Applicant’s discharge was proper and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was unjust and inequitable , because he was discharge d for using S pice, a legal substance in the United States. The Navy’s zero-tolerance drug policy not only applies to illicit drugs but to any legal substance that can be used with the intention to induce intoxication, excitement, or stupefaction of the central nervous system. Regardless of whether S pice is sold legally and can be used legally in the United States, the Navy has designated its use, possession, etc., by Navy personnel to be a violation of Navy policy. Because S pice had not been designated a controlled substance at the time of the misconduct , its use, possession, etc. is punishable under Article 92 of the UCMJ as a failure to obey regulation, rather than under Article 112a , which pertains to

illegal use of controlled substances. The Applicant indicates that his command did make statements suggesting that the use of S pice was against Navy policy. T he NDRB is convinced that the Applicant was aware of the Navy’s policy concerning the use of S pice, regardless of legal status for use by civilians. The NDRB determined that the discharge was proper and equitable. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends his record of service, as evidenced by his service in Guantanamo Bay and Afghanistan, two Navy Achievement Medals, and being an outstanding asset to his various commands, warrants consideration for upgrading his discharge. Despite a service member’s prior record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline. Violation of Article 92 of the UCMJ is such an offense, especially when it involves a violation of the Navy’s policy on drug abuse. Disobeying the Navy’s policy on drug abuse usually results in an unfavorable characterization of service, 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 Applicant violated Article 92 of the UCMJ when he wrongfully used and possessed S pice . However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization given others in similar circumstances. 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 additional 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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