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NAVY | DRB | 2011_Navy | ND1100536
Original file (ND1100536.rtf) Auto-classification: Denied

ex-ET3, USN
Current Discharge and Applicant’s Request
Application Received: 20101221
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)        20060120 - 20060411     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060412     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090417      Highest Rank/Rate: ET3
Length of Service : Y ear ( s ) M onth ( s ) 06 D a y ( s )
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.17

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP:
- 20090217 :      Article (Violated a general regulation by wrongful/illicit use of prescription drugs/medications)
         Awarded: ORAL (to E-3) Suspended: (suspend 6 months)

SCM:     SPCM:    C C :      Retention Warning Counseling :

NDRB Documentary Review Conducted (date):        20100321
NDRB Documentary Review Docket Number:   ND09-02117
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:                  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 23, effective 2 June 2008 until 9 November 2009,
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.       Applicant contends his discharge was inequitable based on the circumstances surrounding an isolated incident of misconduct.
2.       Applicant contends his post-service achievements warrant consideration for discharge upgrade.

Decision

Date: 20 1 1 1128             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 identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did include nonjudicial punishment for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey an order or regulation, wrongful/illicit use of prescription drugs/medications not his own). The Applicant did not have a pre-service waiver for illegal drug use prior to entering the Navy. Based on the Article 92 violation, the Applicant’s command process ed him for administ rative separation , which is mandatory per the Naval Military Personnel Manual (MILPERSMAN). When notified of administrative separation processing using the procedure on 18 Feb 2009 , the Applicant exercised rights to consult with a qualified coun sel, submit a written statement , and request an administrative separation board (ASB) . On 20 Mar 2009, the ASB found: by 3-0 vote that the evidence supported the misconduct for wh ich the Applicant was charged; by 3-0 vote that the Applicant shou ld be separated from the Navy; and by 3-0 vote that the Applicant should receive an Under Other Than Honorable Conditions discharge. The Applicant was separated from the Navy on 17 Apr 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

: (Decisional) ( ) . The Applicant contends his discharge was inequitable based on the circumstances surrounding an isolated incident of misconduct. The Applicant stated he was not a habitual drug user and only used another’s prescription medication to cope with post-operative pain he was experiencing as a result of a severe ankle fracture. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the N aval S ervice in order to maintain good order and discipline. Just a few months prior to committing the misconduct for which he was separated, the Applicant received intensive outpatient substance abuse rehabilitation treatment (Level II) for alcohol dependence; he was fully aware there is a zero - tolerance policy for drug abuse , and he understood the consequences. The evidence of record indicates the Applicant obtained/used prescription pain medication from other people on several occasions , however, during testimony he claimed that the improper use only occurred on one occasion when a pain medication was obtained from a family member. Nevertheless, the record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. When a service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A n Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant failed to m e et the requirements of conduct expected of all Sailors , especially considering his grade and length of service , and falls short of what is required for an upgrade to Honorable. After considering all the available evidence, to include documentation s ubmitted by the Applicant, the B oard concluded that partial relief was justified and that an upgrade to General (Under Honorable Conditions) was warranted. Full relief to Honorable was not granted, because the NDRB determined that misconduct did occur.



: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for discharge upgrade , and he provided verifiable documentation to support his contention. After a careful review of the Applicant ’ s post-service documentation and official service records, and taking into consideration his testimony and the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. The Board voted unanimously to upgrade the discharge characterization to General (Under Honorable Conditions), but not to change the na rrative reason for separation. Full relief to Honorable was not granted, because the NDRB determined that misconduct did occur.

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 administrative separation p rocess, the Board found the discharge was proper and equitable at the time of discharge. However, after careful review of the facts and circumstances surrounding the misconduct and the documentary evidence submitted by the Applicant, the Board determined that partial relief was warranted. Accordingly, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is directed to the Addendum, specifically the paragraph titled Additional Reviews .


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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