Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1100624
Original file (ND1100624.rtf) Auto-classification: Denied

ex-AOAA, USN
Current Discharge and Applicant’s Request
Application Received: 20110104
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)        19940829 - 19940926     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19940927     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19971201      Highest Rank/Rate: AOAN
Length of Service : Y ear s M onth s 03 D a ys
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 2.5 ( 4 )        OTA: 3.21

Awards and Decorations ( per DD 214):      SSDR NDSM AFEM

Periods of C ONF :

NJP: 1

- 19971011 :      Article 86 (Absence without leave, UA, 19970925 - 19970927, 2 days)
         Article (Wrongful use of controlled substance, marijuana)
         Awarded: RIR FOP RESTR EPD Suspended:

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

Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:

          “ MISCONDUCT ”

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:                  Oth er Documentation:    
                  Additional Statements :
          From Applicant:            From /To Representation:            From /To Congress m ember :        


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 seeks an upgrade due to signif icant personal stressors in his life that led to his misconduct.
3.       The Applicant believes his post-service conduct is worthy of consideration.

Decision

Date : 2012 0223             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 ( , , 19970925 - 19970927, 2 days ) and Article ( Wrongful use, possession of a controlled substance, , marijuana ) . The Applicant a pre-service drug waiver for using LSD 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. T he 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.

: (Nondecisional) The Applicant mentions that his goal is to work as a counselor for the California Department of Corrections and Rehabilitation or as an Immigration Customs Enforcement Officer. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant seeks an upgrade to Honorable due to significant personal stressors in his life that led to his misconduct. The Applicant contends stress and emotional problems stemming from his wife leaving him while he was on deployment and his exposure to sexual, emotional, and physical abuse as a child led to the misconduct for which he was separated. The Board conducted an exhaustive review of the records and found no evidence to support, nor did the Applicant provide any evidence to indicate , he attempted to use the numerous services available for service members who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. The NDRB recognizes that serving in the U.S. Navy is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned. After careful consideration, and with no evidence to support the Applicant’s claim, the Board determined that nothing indicated that the Applicant should not be held accountable for his misconduct or that he was not responsible for his actions. Relief denied.

: (Decisional) ( ) PARTIAL . The Applicant contends that his post-service achievements warrant consideration for his discharge to be upgraded 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. Along with his DD Form 293, the Applicant submitted credible documentary evidence of his post -

service conduct. This evidence included: a resume depicting a continuous employment record for the past seven years ; character witness statements ; cop ies of his Associate and Bachelor Degree certificates; college transcripts showing his enrollment in a master’s degree program (4.0 GPA after three courses); certificates of completion for multiple programs: a substance abuse treatment program, alcohol/drug program, drug and alcohol counseling; and a certified addictions treatment counselor certificate . Based on the Applicant’s post-service conduct, the Board concluded that some mitigation was warranted and that the Applicant’s misconduct was an aberration and not indicative of his overall character. The Board voted 3-2 to change the characterization of service to General (Under Honorable Conditions) ; however, the Board also voted 5-0 that there will be no change to the narrative reason for separation. Partial relief granted . Full relief to Honorable was not granted because of the serious drug abuse misconduct.

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. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.
Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630620, SEPARATION OF ENLISTED PERSONNEL 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 .


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 | ND1101572

    Original file (ND1101572.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. DEPARTMENT OF THE NAVYNAVAL...

  • USMC | DRB | 2014_Marine | MD1400542

    Original file (MD1400542.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. DEPARTMENT OF THE NAVYNAVAL...

  • NAVY | DRB | 2013_Navy | ND1301825

    Original file (ND1301825.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)19970716 - 19970924Active: Period of Service Under Review: Date of Current Enlistment: 19970925Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:19980925Highest Rank/Rate:AALength of Service:Year(s)Month(s) 01 Day(s)Education Level:AFQT: 59EvaluationMarks:Performance:NFIRAwards and Decorations (per DD 214):NONEPeriods of UA/CONF:...

  • USMC | DRB | 2008_Marine | MD0801307

    Original file (MD0801307.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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): Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT , of the Marine...

  • USMC | DRB | 2010_Marine | MD1001966

    Original file (MD1001966.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Due to the Applicant’s Pro/Con marks and his documented work performance, an upgrade to Honorable is warranted with no change to the narrative reason for separation.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...

  • NAVY | DRB | 2010_Navy | ND1002185

    Original file (ND1002185.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: Pertinent Regulation/Law A. Representation: none By a...

  • NAVY | DRB | 2011_Navy | ND1101247

    Original file (ND1101247.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2009_Navy | ND0900082

    Original file (ND0900082.rtf) Auto-classification: Denied

    Based on a review of the evidence of record and applicable regulation, the Board determined that an upgrade is warranted and voted unanimously to upgrade the Applicant’s discharge characterization to Honorable. Issue 2: The Board did not address this issue since the relief that the Applicant is seeking has been granted.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,...

  • USMC | DRB | 2007_Marine | MD0701232

    Original file (MD0701232.rtf) Auto-classification: Denied

    After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record, Discharge Process and evidence submitted by the Applicant, the ” 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 upgrade a discharge for the sole purpose of...

  • NAVY | DRB | 2009_Navy | ND0900960

    Original file (ND0900960.doc) Auto-classification: Denied

    DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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 responsive to the issues you raised, or does not...