Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1100511
Original file (ND1100511.rtf) Auto-classification: Denied

ex-GSEFN, USN
Current Discharge and Applicant’s Request
Application Received: 20101228
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)        20030425 - 20030617     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030618     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080418      Highest Rank/Rate: GSE3
Length of Service : Y ear ( s ) M onth ( s ) 06 D a y ( s )
Education Level:        AFQT: 81
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 2.0 ( 1 )        OTA: 3.33

Awards and Decorations ( per DD 214):      (2) NMCOSR (2)

Period of UA : 20080201-20080226, 25 days. C ONF :

NJP:

- 20080204 :      Article (Absence without leave)
         Article (Wrongful use of controlled substance)
         Awarded: Suspended:

SCM:     SPCM:    C C :      Retention Warning Counseling :

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 . 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 seeks an upgrade for service benefits.
2.       The Applicant contends his record of service outweighs his misconduct.
3.       The Applicant contends stress from serving in the military and the conflict in Iraq led to his misconduct.

Decision
Date: 2012 0124             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 discharg e 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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure the pertinent standards of equity and propriety were met. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article ( , , 20080201 - 20080226, 25 days ) and Article ( Wrongful use, possession of a controlled substance, ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation, processing for administrative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel and submit a written statement. However, the Applicant has an HKK separation code on his DD Form 214 , which indicates he waived his right to an administrative board.

: ( Nond ecisional) The Applicant seeks an upgrade for service benefits. The U.S. Department of Veterans Affairs determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization on the issue of obtaining benefits , and this issue does not serve to provide a foundation upon which the Board can gran t relief.

: (Decisional) ( ) . The Applicant sta tes that he received good evaluation marks and got along well with his peers and superiors . 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 112a of the UCMJ is such an offense. Wrongful use of a controlled substance can result 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. Even though the Applicant violat ed Article 112a of the UCMJ, 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.

: (Decisional) ( ) . The Applicant contends he initially self-medicated with alcohol , which eventually led to other substances, as his means of coping with stress from serving in the military and the conflict in Iraq . The NDRB recognizes that serving in the U.S. Navy is challenging. M ost members of the Navy serve honorably and therefore earn their H onorable or General (Under Honorable Conditions) discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Additionally, the NDRB does not view stress as a reason to illegally use drugs. The NDRB found that the Applicant ’ s service was equitably characterized. 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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, 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

Similar Decisions

  • NAVY | DRB | 2013_Navy | ND1301341

    Original file (ND1301341.rtf) Auto-classification: Denied

    The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded characterization of...

  • NAVY | DRB | 2009_Navy | ND0900265

    Original file (ND0900265.rtf) Auto-classification: Denied

    The NDRB therefore relied upon the presumption of regularity in this case and determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case is unclear, not...

  • USMC | DRB | 2012_Marine | MD1201199

    Original file (MD1201199.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.In accordance with Paragraph 1004 of the Marine Corps Separation and Retirement Manual, an Honorable characterization of service upon the expiration of active duty is appropriate when the quality of a Marine’s service has met the standards of accepted conduct and performance of duty for military personnel. Based upon his average Pro/Con marks, the NDRB determined his General discharge was...

  • USMC | DRB | 2010_Marine | MD1001643

    Original file (MD1001643.rtf) Auto-classification: Denied

    Separation for personality disorder is not appropriate when separation is warranted for any other reason (e. g., member meets minimum criteria for misconduct processing). Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . ” Additional Reviews :...

  • USMC | DRB | 2009_Marine | MD0902091

    Original file (MD0902091.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and 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...

  • USMC | DRB | 2012_Marine | MD1201808

    Original file (MD1201808.rtf) Auto-classification: Denied

    Over the next 14 months, he received another retention warning and was found guilty of additional charges at a second Summary Court-Martial before being found guilty at a Special Court-Martial for violating UCMJ Article 112a for using marijuana. After a review of the records, the NDRB found no basis for clemency. ” 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...

  • USMC | DRB | 2008_Marine | MD0800912

    Original file (MD0800912.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT.Discussion :() either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the Board has no authority to...

  • NAVY | DRB | 2011_Navy | ND1100005

    Original file (ND1100005.rtf) Auto-classification: Denied

    ” 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. 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 | DRB | 2008_Navy | ND0800549

    Original file (ND0800549.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe) The NDRB did note administrative error(s) on the original DD Form...

  • NAVY | DRB | 2008_Navy | ND0800705

    Original file (ND0800705.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)19970723 - 19971221Active: Period of Service Under Review: Date of Enlistment: 19971222Period of enlistment: YearsExtensionDate of Discharge:20050614Length of Service: Yrs Mths23 DysEducation Level: Age at Enlistment:AFQT: 62Highest Rank/Rate:OSSNEvaluation marks:Performance: NFIR Behavior:NFIROTA: NFIRAwards and Decorations (per DD 214):NONEPeriods of UA/CONF:...