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NAVY | DRB | 2011_Navy | ND1100622
Original file (ND1100622.rtf) Auto-classification: Denied

ex-BM3, 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)        20021019 - 20030625     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030626     Age at Enlistment:
Period of E nlistment : Years 30 MONTHS Extension
Date of Discharge: 20090925      Highest Rank/Rate: BM2
Length of Service : Y ear s M onth s 00 D a ys
Education Level:        AFQT: 66
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.3 ( 4 )        OTA: 3.63

Awards and Decorations ( per DD 214):      NMCAM GCM NAVY “ E” NDSM GWOTEM GWOTSM

Periods of UA /C ONF :

NJP: 1

- 20090130 :      Article 112a (Wrongful use of controlled substance , cocaine )
         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:                  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.        The Applicant seeks an upgrade to enhance employment opportunities.
2.       The Applicant contends her discharge is inequitable because it was based on an isolated incident.
3.       The Applicant contends her discharge is inequitable because she served her initial four- year contract.
4 .       The Applicant contends her depression led to her misconduct , and if she had been treated when she asked for help, her misconduct might never have occurred . She also contends that constant sexual abuse and harassment while in the Navy led to her misconduct.
5 .       The Applicant believes her post-service conduct is worthy of consideration.

Decision

Date: 2012 0206             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 ( , , drugs - cocaine ) . The Applicant a pre-service drug waiver prior to entering the Navy. Based on the offense 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 her rights to consult with a qualified counsel and submit a written statement . However, the Applicant has a GKK separation code on her DD Form 214 , which indicates s he exercis ed h er right to an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to enhance employment 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.

: (Decisional) ( ) . The Applicant contends h er discharge is inequitable, because it was ba sed on an isolated incident in 75 months of service with no other adverse action. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of 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 was found guilty of violati on of Article 112a. However, her command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Relief denied.

: (Decisional) ( ) . T he Applicant contends she should have receive d an Honorable d ischarge since she had completed her initial four-year contract and was fulfilling her extension . Although the Applicant had served her original four-year contract, c haracterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service plus any extensions prescribed by law or regulations or effected with the consent of the member. Relief denied.




: (Decisional) ( ) . The Applicant contends her depression led to her misconduct , and if she had been treated when she asked for help, her misconduct might never have occurred. The Applicant conten ds depression resulting from her fractured back and mental anguish related to having been sexually assaulted led to the misconduct for which s he was separated. She also contends that a corpsman rebuffed her efforts to seek help for her mental anguish. The NDRB conducted an exhaustive search of the Applicant’s service records and documents provided by the Applicant, which revealed evidence from the Department of Veterans Affairs diagnos ing the Applicant with P ost-Traumatic Stress Disorder (PTSD) stemming from sexual assaults while on active duty a nd Major D epressi ve Disorder (post-service) . However, t here is no evidence in the Applicant’s record indicating that she was suffering from depression or PTSD during the time in which she chose to engage in cocaine use. By a vote of 3-2 , t he NDRB determined that relief was not warranted and that the characterization of service was appropriate for the offens e s he committed. Relief deni ed.

Issue 5: (Decisional) ( ) . The Applicant contends that her post-service conduct warrants consideration for upgrading the characterization of h er service 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 in civilian life subsequent to leaving the service. The Applicant submitted an honors student certificate, documentation of community service, San Diego Community College transcripts depicting a 3.27 GPA, a Dean’s List certificate , and letters of character reference from counselors, professors, her mother, and her brother. Unfortunately, the documentation submitted was not sufficient to evaluate her post-service character and conduct and prove that the in-service misconduct was an aberration. S ubmission of post-service documentation 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. 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

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