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NAVY | DRB | 2011_Navy | ND1100875
Original file (ND1100875.rtf) Auto-classification: Denied

ex-CTT1, USN
Current Discharge and Applicant’s Request
Application Received: 20110218
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)        19971121 - 19971214     Active:   19971215 - 20071209 HON

Period of Service Under Review:
 Date of Current Enlistment: 20071210     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20091012      Highest Rank/Rate: CTT1
Length of Service : Y ear M onth s 03 D a ys
Education Level:        AFQT: 70
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      Pistol SS NMCAM (2) NUC NAVY “ E ” (3) GCM (3) GWOTEM GWOTSM SSDR (3) ESWS EAWS NDSM MUC

Periods of UA /C ONF :

NJP: NONE                 SCM: NONE                 SPCM:   C C :

Retention Warning Counseling:

- 20090422 :      Details NFIR
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 971215 UNTIL 071209”

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:                  Other Documentation:    
                  Additional Statements:
          From Applicant:           From/To Representation:           From/To Congress member:        


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

Applicant’s Issues

 1.       The Applicant contends his discharge is inequitable due to the fact that all civilian charges were dropped prior to the administrative board.
2 .        The Appl icant contends he had been improperly measure d during a physical fitness assessment after an abdominal hernia surgery.
3.       The Applicant believes his military record is deserving of an upgrade to an Honorable characterization of service.

Decision

Date: 20 1 2 0315             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 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’s record of service included one NAVPERS 1070/613 (Page 13) warning , however, the details of the warning were not found in his record. His service record did not include any misconduct resulting in non - judicial punishment or trial by court-martial , and h e did not require a pre-service drug waiver to enter the Navy. The Applicant was administratively processed for separation for misconduct due to possession of drug paraphernalia and physical fitness assessment failure. Misconduct due to the possession of drug paraphernalia was the primary reason for separation. When notified of administrative separation processing using the administrative board procedure , the Applicant exercised his rights to consult with a qualified coun sel and request an administrative board . The Administrative Separation (ADSEP) Board voted unanimously to recommend that the Applicant be separated from the Navy.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable due to the fact that all civilian charges were dropped prior to the administrative board. According to documentation found in the Applicant’s service record, on 25 January 2009, civilian authorities arrested and charged him with possession of drug paraphernalia. On 22 June 2009, prior to the ADSEP Board, the civilian charges were dropped due to lack of evidence, which does not mean the Applicant did not commit the offense and is not the equivalent of being found not guilty. The military charges stemming from the incident occurring on base on or about 6 February 2009 were also dropped after his father-in-law admitted to authorities that the drugs and paraphernalia found in his (father-in-law ’s ) vehicle belonged to him and not the Applicant. Although, prior to the board, the command was aware that the military charges had been dropped, the Applicant was not informed until after the board was completed. I t is reasonable to expect that had he been afforded the opportunity to present the disposition of the military charges before the ADSEP Board, it might have affected the outcome of the ADSEP Board. Further, in the recommendation for administrative separation submitted by the Commanding Officer, Navy Information Operations Command Texas, he fully supported the recommendation of the ADSEP Board for separation but referred to the dropping of the civilian charges and recommended that the Applicant be discharged with a General (Under Honorable Conditions). Despite this recommenda tion, the Separation Authority directed that the Applicant be discharged Under Other Than Honorable Conditions due to Misconduct (Drug Abuse). After a complete review of the Applicant’s record, separation proceedings, and recommendation from his CO, the NDRB determined that a preponderance of the evidence supported his separation due to Misconduct (Drug Abuse) but that an upgrade to General (Under Honorable Conditions) was warranted. Partial r elief granted. Full relief to Honorable was not granted due to the misconduct.

: (Decisional) ( ) The Applicant contends he had been improperly measured during a physical fitness assessment after an abdominal hernia surgery. After a thorough review of the records, the NDRB determined that there was no impropriety or inequity with respect to his command’s measuring and recording of the Applicant’s PFA results. Relief denied.


: (Decisional) ( ) The Applicant believes his military record is deserving of an upgrade to an Honorable characterization of service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, war rant separation from the Naval S ervice to maintain proper order and discipline. Wrongful possession of drug abuse paraphernalia is a violation of UCMJ Article 112a and is one such offense that warrants mandatory processing for administrative separation regardless of performance, 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. An administrative separation board determined, through a preponderance of the evidence, that the Applicant did wrongfully possess drug paraphernalia. His co mmand , however, did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. 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 . Full relief was not granted because of the questionable circumstances surrounding the disposition of the civilian charge , which was not conclusive proof that the Applicant did not commit the offense. 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 for additional information.

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 .


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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