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NAVY | DRB | 2011_Navy | ND1100216
Original file (ND1100216.rtf) Auto-classification: Denied

ex-DCFR, USN
Current Discharge and Applicant’s Request
Application Received: 20101103
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3640420

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        19880509        Active:            19880510 – 19920219 HON

Period of Service Under Review:
 Date of Current Enlistment: 19920220     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960510      Highest Rank/Rate: DC3
Length of Service : Y ear ( s ) M onth ( s ) 21 D a y ( s )
Education Level:        AFQT: 31
Evaluation M arks:         Performance: 3.7 ( 3 )      Behavior: 3.7 ( 2 )        OTA: 3.70 (2)

Awards and Decorations ( per DD 214):      (3) (2) W / 1 BRONZE STAR JMUA

NJP :

S CM :

- 19931120 :      Article (U nauthorized absence ) , 19931007-19931106 (30 days)
         Article 87 (Missing movement) , 19931008
         Sentence: (19931120-19931218, 29 days)

SPCM:

- 19950 2 10 :      Article (U nauthorized absence), 1 9931222 - 19941128 ( 341 days)
         Article 112a (Drugs - cocaine), 2 specifications , 19941126 and 19941207
         Sentence: FOR 75 DAYS (19950210-19950412, 62 days)

C C :

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

          “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 880510 UNTIL 920219 ”
          “ COURT MARTIAL ”

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 5, effective 5 March 1993 until 2 October 1996, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C . 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.       Applicant contends his misconduct was a result of effects related to PTSD and warrants consideration for upgrade.
2.       Applicant seeks an upgrade based on post-service conduct and achievement.

Decision

 Date: 20 1 1 0411            
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. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant ’ s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant identif ied two decisional issues for the Board ’s consideration . T he Board co nducted a thorough review of the circumstances that led to discharge and the punitive discharge process to ensure discharge met the pertinent standards of equity. The Applicant’s record of service did not contain any NAVPERS 1070/613 (Page 13) retention warnings or commanding officer’s nonjudicial punishment (NJP). The record did contain summary court-martial (SCM) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 7 Oct-11 Nov 1993 , 30 days , terminated by surrender ) and Article 87 ( Missing movement, 8 Oct 1993, specifics NFIR ) and one special court-martial (SPCM) for violations of UCMJ Article 86 ( Absence without leave, 22 Dec 1993-28 Nov 1994, 341 days, terminated by surrender) and Article 112a (Wrongful use, possession, etc of controlled substance, cocaine, 2 specifications, 26 Nov and 7 Dec 1994).

The records indicate that during enlistment processing, the Applicant admitted to one use of marijuana (in 1986) and signed his acknowledgment of the U.S. Navy ’s Zero Tolerance Policy on D rug A buse on 10 and 12 May 1988. The records indicate the Applicant self-referred to the command D rug and A lcohol P rograms A dvisor (DAPA) for his illegal drug use on 4 Oct 1993. It is unclear what transpired during the self-referral meeting or what offers of assistance/recommendations were made to the Applicant. However, t hree days later on 7 Oct 1993, the Applicant went UA for a 30 day period. During this UA period, the records reflect that the command DAPA submitted an initial drug and alcohol abuse report ( DARR ) on 21 Oct 1993, within the 30-day time requirement as per OPNAVINST 5340.4. There is no evidence in the record to indicate whether or not the Applicant was referred for substance abuse dependency examination after his self-referral , but the aforementioned DARR report did state “member was referred as the result of a self referral for drug abuse on 4 Oct 1993 . ” Based on the 30 - day period of UA and Missing Movement offenses committed by the Applicant during Oct-Nov 1993, his command referred him to trial by summary court-martial. The Applicant was found guilty at SCM on 20 Nov 1993 and sentenced to forfeiture of pay, reduction in rank to E-1, and confinement for 30 days. He was released from confinement on 18 Dec 1993 and subsequently went UA again on 22 Dec 1993 for 341 days. Upon return from UA on 28 Nov 1994, t he Applicant , after consulting with qualified counsel , submitted a request for separation in lieu of trial by court-martial to his commanding officer. After consideration of all the facts surrounding the Applicant’s case, the commanding officer denied the request and proceeded with preparations for trial by special court-martial. O n 10 Feb 1995, the Applicant was found guilty of 341 days of UA (Article 86) and two specifications of illegal cocaine use (Article 112a) , both uses occurring with in days of his return from UA . He was sentenced to forfeiture of pay, confinement for 75 days and a Bad Conduct Discharge. On 17 Mar 1994, while serving his confinement sentence in the brig, the Applicant accepted an offer for substance abuse treatment, which was later scheduled at a local VA Hospital near his home in South Carolina. After completion of appellate review and affirmation by the Navy and Marine Corps Court of Criminal Appeals, the Applicant was discharged from the Navy on 10 May 1996 with a Bad Conduct Discharge.

: (Decisional) ( ) . The Applicant contends his misconduct was a result of effects related to PTSD and warrants consideration for an upgrade. 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 issue. The NDRB found no medical diagnosis in the record to support the Applicant ’ s claim nor did the Applicant produce any medical diagnosis by competent medical authority to support his claim. Additionally, while specific in-service events related by the Applicant during his appearance hearing indicated periods of heightened stress while on active duty, the Board found no evidence to support his contention that PTSD, or any other issue, was present in such significance that the Applicant was not responsible for his actions. While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his repeated and willful misconduct, and demonstrat ed he was unfit for further service. After thorough analysis and consideration of all the facts, the Board determined this issue to be without merit and did not provide a basis for which relief could be granted. Relie f denied.

: (Decisional) ( ) PARTIAL . The Applicant seeks an upgrade based on post-service conduct and achievement. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided documentation that included: criminal records search results, employer letters of reference, character letters of reference, evidence of substance treatment , and continued, successful aftercare participation. After thorough examination o f the supporting documentation subm itted by the Applicant and the evidence presented at the hearing, the Board determined that commendable post-service conduct was indicative of the Applicant’s character, thereby provid ing a basis for which partial relief could be granted. Full relief was not granted due to the seriousness of the misconduct.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries and the punitive d ischarge p rocess, the Board found the discharge was proper and equitable at the time of discharge. However , based on evidence and testimony presented during the appearance hearing, the Board found that partial relief was warranted on the basis of clemency. Therefore, the awarded characterization of service shall UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain .


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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