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NAVY | DRB | 2011_Navy | ND1100882
Original file (ND1100882.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20110216
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)        19971224 - 19980125     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19980126     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19990720      Highest Rank/Rate: AA
Length of Service : Y ear M onth s 25 D a ys
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP: 4

- 1998 0928:      Article 86 (Absence without leave, UA, 19980921)
         Awarded: FOP RESTR EPD (30 days) Suspended: RESPT EPD (10 days) (Vacated on 19981102 due to continued misconduct)

- 19981109 :      Article 86 (Absence without leave)
         Article 90 (Disobey lawful order from commanding officer on 19981010)
         Awarded: FOP RESTR EPD Suspended:

- 19990225:      Article 80 (Attempt to steal on 19990114)
         Article 86 (Absence without leave, 2 specifications )
         Specification 1: UA, 0530 - 0730, 19981229
         Specification 2: UA, 0530 - 0730, 19990126
         Article 107 (False official statement, 2 specifications, 19990114)
         Article 121 (Larceny on 19990110)
         Awarded: FOP RESTR EPD Suspended: NONE
- 19990318 :      Article 107 (False official statement, 19990308)
         Article 123 (Forgery, uttering a forged signature on 19990305)
         Awarded: FOP CONF BW (3 days) Suspended:

SCM: 1

- 19990426 :      Article 86 (Absence without leave, 4 specifications )
Article 112a (Wrongful use of controlled substance, marijuana on 19990222 , NAVDRUGLAB message 020400 MAR 99)
         Sentence: RIR FOP RESTR CONF 20 days (19990427 – 19990513, 17 days)

SPCM:   C C :

Retention Warning Counseling: 1

- 19980930 :      For absence without leave

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:        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 1999 until 26 March 2000, 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 contends he was denied the assistance he requested for his addiction.
2.       The Applicant contends he was denied a sleep study.
Decision

Date: 20 1 2 0320             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 and four non - judicial punishments for violations of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempt to steal), Article 86 (Absence without leave, 4 specifications), Article 90 (Disobey lawful order from commanding officer on 19981010), Article 107 (False official statement, 3 specifications), Article 121 (Larceny , 1 specification ), and Article 123 (Forgery, uttering a forged signature) . His record of service also included one summary court-martial for violations of the UCMJ: Art icle 86 (Absence without leave , 4 specifications ) and A rticle 112a (Wrongful use of controlled substance, marijuana ) . The Applicant a pre-service drug waiver for using marijuana three times prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived his rights to consult with a qualified counsel and submit a written statement . However, the Applicant has a separation code of HKK on his DD Form 214, which indicates he waived his right to request an administrative board .

: (Decisional) ( ) . The Applicant contends he was denied the assistance he requested for his addiction. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. The Board found no documentation evidence in his medical or service record s indicating he had ever been screened , counseled, or diagnosed as drug and /or alcohol dependen t . Neither was there any evidence that the Applicant had ever requested assistance or was denied the opportunity to get treatment for drug and alcohol abuse or dependency. T he Applicant did not provide any evidence to support his claim. His statement alone does not overcome the government’s presumption of regularity in this case. T he Board concluded th at relief based on this issue is not warranted. Relief denied.

: (Decisional) ( ) The Applicant contends he was denied a sleep study . He gave no indication of what being denied a sleep study had to do with him being discharge d due to drug abuse , or how a sleep study would have changed the outcome of his discharge. There is no evidence in the record, nor has the Applicant produced any evi dence, to support his claim that he was denied a sleep study . Documentation found in the Applicant’s medical record indicates he was being seen by medical personnel for excessive daytime sleepiness and that a sleep study was being considered . However, there was no evidence that a sleep study would have made a difference in his command’s decision to discharge him. Even if a sleep study had led to consider ation for a medical discharge, his misconduct would have taken precedence over the potential separation for medical reasons . T he NDRB sees no connection between his sleep problems and his wrongful use of a controlled substance. Therefore, r elief based on this issue is not warranted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord entries, 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 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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