Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1100336
Original file (ND1100336.rtf) Auto-classification: Denied

ex-IC3, USN
Current Discharge and Applicant’s Request
Application Received: 20101122
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)        19920430 - 19930207     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 199 3 0208     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960223      Highest Rank/Rate: IC2
Length of Service : Y ear s M onth s 16 D a ys
Education Level:        AFQT: 95
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 4.0 ( 4 )        OTA: 3.95

Awards and Decorations ( per DD 214):      NDSM BATTLE “ E” SWASM (W/ Bronze Service Star) SSDR AFEM NMCAM

Periods of UA /C ONF :

NJP: 1

- 19951017 :      Article 112a (Wrongful use of controlled substance, amphetamines and methamphetamines, NAVDRUGLAB msg 182104z A ug 95)
         Awarded: RIR FOP RESTR EPD Suspended:

SCM: NONE        SPCM:    C C :      Retention Warning Counseling: NONE

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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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.       Applicant contends his discharge was inequitable , because it was based on an isolated incident.
2.       Applicant contends his record of service, as evidenced by promotions, awards, and performance, warrants consideration for upgrading his discharge to H onorable.
3.       Applicant highlights th e fact that his pre-service drug use was mentioned during the administrative board proceedings, implying his discharge was inequitable , because the board used his pre-service drug use against him when determining whether the misconduct occurred and in making its recommendation for retention and character of service.
4.       Applicant contends his post-service conduct and achievements, as evidenced by his receiving a Masters Degree , participation in environmental studies , continuous employment , recognition with several academic and employment awards , teaching and consulting service s provided to San Diego State University , membership in various associations , membership on the San Diego Regional GIS Council , participation as a judge for the San Diego Regional Science and Engineering Fair for middle school students , and character references , warrant s consideration for upgrading his discharge to Honorable.

Decision

Date: 20 1 2 0301             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 did not include any NAVPERS 1070/613 (Page 13) warnings or trials by court-martial for violation s of the Uniform Code of Military Justice (UCMJ) . However, it did include one non-judicial punishment for violation of the UCMJ : Article 112a (Wrongful use of a controlled substance, 1 specification). The Applicant also had a pre-service drug waiver for using marijuana 100 times and cocaine five times prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . The Administrative Separation Board (ASB) voted unanimously that the misconduct did occur and recommended separation with a General (Under Honorable Conditions) character ization of service.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it was based on an isolated incident . He further contends his record of service, as evidenced by his promotions, awards, and performance, warrants consideration for upgrading his discharge to Honorable. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval S ervices to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of performance, grade, or time in service. 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 Applicant wrongfully used a controlled substance. 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 less severe than the characterization of discharge given others in similar circumstances. Therefore, relief based on these issue s is not warranted. Relief denied.






: (Decisional) ( ) . Applicant highlights th e fact that his pre-service drug use was mentioned during the administrative board proceedings, implying his discharge was improper and inequitable. 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 s upport his implication that considering his pre-service drug use during administrative proceedings was improper. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. The NDRB discerned no impropriety or inequity based on this issue. Relief denied.
: (Decisional) ( ) . The Applicant contends his post-service conduct and achievements, as evidenced by his receiving a Masters Degree, participation in environmental studies, continuous employment, recognition with several academic and employment awards, teaching and consulting services provided to San Diego State University, membership in various associations, membership on the San Diego Regional GIS Council, participation as a judge for the San Diego Regional Science and Engineering Fair for middle school students, and character references, warrants consideration for upgrading his discharge to Honorable. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct or achievements in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Although the Applicant submitted a significant amount of documentation pertaining to his post-service achievements and character, it was still not sufficient to convince the majority of the NDRB members that his in-service misconduct did not occur or warranted an upgrade to Honorable. By a vote of 4 to 1, the NDRB concluded that relief based on this issue was not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord entries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.


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

Similar Decisions

  • NAVY | DRB | 2011_Navy | ND1101231

    Original file (ND1101231.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant did not identify any issues to the NDRB. The NDRB does not issue automatic upgrades.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ”...

  • USMC | DRB | 2010_Marine | MD1000697

    Original file (MD1000697.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, 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. ...

  • USMC | DRB | 2006_Marine | MD0600432

    Original file (MD0600432.rtf) Auto-classification: Denied

    Applicant understands that the separation authority may disapprove his request for a general discharge and award him an other than honorable characterization of service.020223: Medical Division, NAVCONBRIG MIRAMAR, San Diego, CA confinement evaluation.020225: Counseling: Advised of deficiencies in performance and conduct (Conviction at a summary court martial held on 020222, at Spt Bn, RTR, MCRD San Diego, CA), and advised being processed for administrative discharge action.Applicant chose...

  • USMC | DRB | 2014_Marine | MD1400231

    Original file (MD1400231.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2002_Navy | ND02-00801

    Original file (ND02-00801.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Performance Information Memo from Head, Electronics Training Dept, FTC, San Diego, dated September 10, 1999 Applicant's Military Course Summary Applicant's Enlisted Performance Evaluation (00FEB09 to 01OCT25)Copy of DD Form 214 PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 000107 -...

  • NAVY | DRB | 2005_Navy | ND0500222

    Original file (ND0500222.rtf) Auto-classification: Denied

    The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member requests copy 4) Letter from Substance Abuse Rehabilitation Department (SARD), Naval Medical Center San Diego, dated December 11, 2003 Applicant’s Evaluation...

  • USMC | DRB | 2003_Marine | MD03-01492

    Original file (MD03-01492.rtf) Auto-classification: Denied

    In addition the National Guard and his civilian employers speak very highly of his character.” Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s ltr to the Board, dtd 030804.Discharge Record of W Jr., R T., dtd 900928.Waiver to enter the California Army National Guard, dtd 971113.State of California Certificate of Death ico the Applicant’s Father, dtd 870322, 1730.Applicant’s Army/ARNG DD Form 214. ...

  • USMC | DRB | 2001_Marine | MD01-00640

    Original file (MD01-00640.rtf) Auto-classification: Denied

    (Equity Issue) His violation of the UCMJ notwithstanding, this former member opines that his overall service record warrants separation under honorable conditions.2. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of DD Form 214 Copy of CG's Discharge Authority Copy of Offenses and Punishments (1070) VA Claim PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of...

  • NAVY | DRB | 2004_Navy | ND04-00920

    Original file (ND04-00920.rtf) Auto-classification: Denied

    Applicant)) discharge was inequitable because it was based on one isolated incident in 65 months of service with no other adverse action.The discharge is improper because the Applicant’s pre-service civilian activity, properly listed on his enlistment documents, was used in the discharge proceedings. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’ s DD Form 214 Texas Real Estate Commission...

  • USMC | DRB | 2010_Marine | MD1000051

    Original file (MD1000051.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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. ” Additional Reviews : After a document review has been conducted, former members are eligible for...