Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100131

Original file (ND1100131.rtf) Auto-classification: Denied

ex-EWSR, USN

Current Discharge and Applicant’s Request

Application Received: 20101020

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)        19951222 - 19951225     Active:

Period of Service Under Review:
Date of Current Enlistment: 19951226     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970107      Highest Rank/Rate: EWSA
Length of Service : Y ear M onth s 12 D a ys
Education Level:        AFQT: 84
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      NDSM

Periods of UA /C ONF :

NJP: 1

- 19961121 :      Article (Wrongful use possession, etc of a controlled substance - Marijuana , per N aval Drub Lab Message 132356Z NOV 96 )
         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 errors on the original DD Form 214:

         “UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT ”

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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630620, SEPARATION OF ENLISTED PERSONNEL 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

Non-decisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate better employment opportunities and re-enlistment in the National Guard. The Applicant also seeks a change in his reentry code.

Decisional issues : (1) The Applicant contends that his discharge characterization of service was inequitable; his misconduct of record was an isolated incident in what was otherwise honorable service. (2) The Applicant contends that his discharge characterization of service was inequitable; it was an aberration in his character and asks that the NDRB consider his post-service conduct since discharge. (3) The Applicant contends that his discharge characterization of service was inequitable; an OTH characterization was overly harsh for his misconduct of record – it is usually withheld for more egregious personal and professional misconduct than the Applicant’s.

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 three decisional issues for the NDRB’s consideration. Additionally, the NDRB completed a thorough review of the circumstances that led to the discharge action and the discharge process to ensure the discharge met the pertinent stan dards of equity and propriety. The Applicant’s record of service included a single nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): specifically, Article 112(a) (Wrongful use, possession, etc of a schedule I controlled substance – marijuana). The Applicant enlisted into the armed service s with out any moral or legal waiver s to enlistment and induction standards . The Applicant acknowledged his complete understanding of the Navy Policy Concerning the Illegal Use of Drugs as a function of his enlistment . Due to on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory.

The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN): W hen notified of administrative separation processing using the notification procedure, the Applicant elected to waive his right to consult with qualified legal counsel, to submit written matters to the Separation Authority, or to request an administrative board hearing be held to hear his case for retention. The Applicant was notified - in writing - of the Command’s intent to process him for administrative separation due to Misconduct (Drug Abuse) in accordance with Article 1910-146 of the MILPERSMAN. After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reason for discharged. As such, the Separation Authority directed the Applicant’s discharge with an Under Other Than Honorable Conditions characterization of service due to Misconduct (Drug Abuse) with a n RE-4 re-entry code.

(Nondecisional issues) - The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate better employment opportunities and re-enlistment in the National Guard. The Applicant also seeks a change in his reentry code. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities or to facilitate re-enlistment in the Armed Services. Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the armed forces, and is not authorized to change a reentry code. The Applicant may petition the Board for Correction of Naval Records (BCNR) using standard DD Form 149 regarding a change to a reenlistment code. When requesting this change, the Applicant should provide as much documentation regarding his reason for change as possible. T heir website address is http://www.donhq.navy.mil/bcnr/bcnr.htm .

(Decisional issue s ) ( ) . The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. In reviewing discharges, the NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Processing for administrative separation for illegal drug use is mandatory by service policy. The Applicant was properly notified of the proposed discharge action to include the fact that the least favorable characterization of service warranted was U nder O ther T han H onorable C onditions and that is what the command was recommending he receive. Confirmation of the Applicant’s wrongful use of a controlled substance (marijuana) was confirmed by Naval Drug Lab testing. Based on the documentation of record, the NDRB determined that the separation was proper and that the narrative reason for separation was accurate. No relief based on propriety of the discharge action is warranted.

Decisional I ssue 1 (Equity) - The Applicant contends that his discharge characterization of service was inequitable; his misconduct of record was an isolated incident in what was otherwise 11 months of honorable service. Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline of the service. Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service. Moreover, this action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant’s command did not opt to pursue a punitive discharge , but instead chose the more lenient nonjudicial punishment and administrative discharge process. No relief warranted.

Decisional I ssue 2 (Equity) - The Applicant contends that his discharge characterization of service was inequitable; it was an aberration in his character and asks that the NDRB consider his post-service conduct. There is no law or regulation to upgrade an unfavorable discharge based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge to the extent that 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 letters of reference and documentation regarding his employment, training, and his educational accomplishments . The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. Relief denied.

Decisional I ssue 3 (Equity) - The Applicant contends that his discharge characterization of service was inequitable; an OTH characterization was overly harsh for his misconduct of record – it is usually withheld for more egregious, personal, or professional misconduct. Characterization of service at discharge is the recognition of a Sailor ’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from that conduct expected of members of the Naval Service. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, did reflect an act or omission - illegal drug use - that reflected a serious and significant departure from th e conduct expected of a ll service member s . Relief denied .

By a vote of 5-0, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and does still remain consistent with the characterization of discharge given others in similar circumstances; an upgrade or change in this case would be inappropriate. R elief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that 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 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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NAVY | DRB | 2011_Navy | ND1100131

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