Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1002308

Original file (ND1002308.rtf) Auto-classification: Denied

ex-QMSN, USN

Current Discharge and Applicant’s Request

Application Received: 20100922

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)        20041005 - 20041028     Active:
         USNR (DEP)       20041213 - 20050724

Period of Service Under Review:
Date of Current Enlistment: 20050725     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070402      Highest Rank/Rate: QMSN
Length of Service : Y ear ( s ) M onth ( s ) 07 D a y ( s )
Education Level:        AFQT: 43
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 2.50

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :
Time Lost (per DD 214): 20060728-20060823, 27 days

NJP:     SCM:     SPCM:

C C :

- 20061027 :      Offense: Possession of cocaine
         Sentence: Operator license suspension for 6 months, court cost $505.00

- 20061121 :       Offense: Possession of marijuana of less than 1/2 ounce with intent to distribute
         Sentence : Jail for 12 months (suspended), court cost $475.50, unsupervised probation for 2 years

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

         “ 05 JUL 25 ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

NDRB Documentary Review Conducted (date):        20081023
NDRB Documentary Review Docket Number:   ND08-01378
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 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

1.       The Applicant contends it is i nequitable for him to continue to suffer the adverse effects of the Under Other Than Honorable Conditions char acterization of his discharge.
2.       Post-service conduct warrants consideration for upgrad e to General ( Under Honorable Conditions ) .

Decision

Date: 20 1 1 0912             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 d id not include any NAVPERS 1070/613 (Page 13) warnings , non-judicial punishments, or trials by court-martial for violations of the UCMJ. However, t he Applicant ’s record of service did include two civilian convictions involving the possession of controlled substances. The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel and request an administrative board . He waived his right to submit a written statement.

: (Decisional) ( ) . The Applicant contends that it is inequitable for him to continue to suffer the adverse effects of the Under Other Than Honorable Conditions characterization of his discharge. The NDRB conducted a thorough review of the Applicant’s discharge. The Board determined that the Applicant’s first civilian conviction that occurred during his period of service was based on an arrest that occurred before he entered the Navy. Therefore, the Board unanimously concluded that it was inequitable to consider the first convictio n as a basis for separation. Less than one week after being indicted on the pre-service charges that led to his first in-service conviction, the Applicant was again arrested for possession of a controlled substance, which led to his second conviction. However, based on evidence provided by the Applicant and his plausible testimony regarding the circumstances that led to the second arrest and subsequent conviction, the NDRB concluded that the Applicant was a victim of unfortunate circumstances. Based on facts and circumstances unique to this case, the NDRB determined that the discharge was proper but inequitable . Relief granted.

: Relief was granted based on Issue 1 , t herefore, Issue 2 will not be addressed.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, 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 is not eligible for additional reviews or hearings by the NDRB. He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, for further review using DD Form 149.

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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NAVY | DRB | 2010_Navy | ND1002308

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