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NAVY | DRB | 2011_Navy | ND1100709
Original file (ND1100709.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20110119
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       ADMINISTRATIVE

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20070720 - 20071210     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20071211     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100520      Highest Rank/Rate: MM3
Length of Service: Y ear s M onth s 10 D a ys
Education Level:        AFQT: 91
Evaluation M arks:         Performance: 3.0 ( 5 )      Behavior: 2.2 ( 5 )        OTA: 2.77

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

Periods of UA /C ONF :

NJP :
- 20100325 :      Article 92 ( F ailure to obey order or regulation , possession of illegal substance )
         Article 107 (False official statement)
         Awarded: RIR (to E-3) FOP Suspended: NFIR

S CM : NONE       SPCM: NONE       C C : NONE          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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until 17 August 2011, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 92 and 107.


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       Applicant seeks a discharge upgrade to increase employment opportunities.
 2.       Applicant contends his discharge is improper/ inequitable , because the evidence against him did not clearly support t he allegation he had been smoking Spice.
3.       Applicant contends command impropriety in rushing his NJP, therefore not allowing him time to review the evidence against him prior to attending Captain’s M ast.
4.       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.
Decision

Date : 20 1 2 04 05             Location: Washington D.C .        R epresentation : NONE

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 Applicant identified t hree decisional issues for the Board’s consideration. Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 ( F ailure to obey order or regulation, possession of illegal substance) and Article 107 (False official statement) . The record indicated the Applicant did not require an enlistment waiver for illicit drug use prior to entering the Navy. Based on the offenses committed by the Applicant, his command administratively processed him for administrative separation due to misconduct (serious offense) . Since the NDRB did not have the Applicant’s administrative separation package available for review, it could not determine whether the Applicant exercised or waived his rights to consult with a qualified counsel , submit a written statement , and request an administrative separation board. The separation code HKQ on the Applicant’s DD Form 214 indicates he waived his right to an administrative separation board proceeding . The Applicant was separated from the Navy on 20 May 2010 with an Under Other Than Honorable Conditions discharge due to Misconduct (Commission of a Serious Offense).

: (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge

Issues 2-3 : (Decisional) ( ) . The Applicant contends his discharge is improper/inequitable , because the evidence against him did not clearly support the allegation he had been smoking S pice , and that the command rush ed his NJP, there by not a ffording him the appropriate time to review the evidence against him prior to attending Captain’s Mast. The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General ’ s Office. Allegations notwithstanding, the Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. After a detailed examination of the available documentation, the Board could find no evidence to support the Applicant’s claim of impropriety or inequity . The Applicant submitted two letters from former shipmates that further indicated that the Applicant’s misconduct had something to do with Spice, but the NDRB determined that the letters were not sufficient to show that the Applicant was improperly or inequitably discharged. Although the Applicant’s records are incomplete and do not provide details regarding the misconduct for which he was separated, t he records did contain documentation that had been signed by the Applicant ( on 11 Feb 2008 ) titled Nuclear Power Program Acknowledgment Page 13 , which re vealed the following : “I have been briefed this date on the following: the responsibility I will carry in the fleet as a nuclear trained petty

officer will require not only technical competence but also total reliability and unquestionable integrity. Any actions that reflect poorly upon my personal integrity will weigh heavily in evaluations made regarding my potential as a future nuclear propulsion plant operator . ” Additionally, u pon completion of nuclear power ‘A’ school and the n the nuclear power training program during the summer of 2009, the Applicant was reassigned to the USS Ronald Reagan (CVN 76) . During check-in processing , the Applicant was counseled via NAV PERS 1070/613 (dated 23 Aug 2009) that the use of controlled substances (to include designer drugs) was expressly prohibited. The Applicant signed his complete understanding below the statement , “I acknowledge receipt of these USS Ronald Reagan Alcohol Rules and fully understand them. I understand that the above rules are intended to be punitive and violation could result in disciplinary proceedings under the UCMJ or adverse administrative action . ” After careful consideration of the available records relating to the Applicant’s claim of impropriety and inequity , and with no evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined the Applicant’s issue did not provide a basis for which relief could be granted. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation, that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. The Applicant provided a personal statement and transcripts as evidence of post-service accomplishments. Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review . He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, c ompletion 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. Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for and is encourage d to request a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.


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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