Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1100958

Original file (ND1100958.rtf) Auto-classification: Denied

ex-EM3, USN

Current Discharge and Applicant’s Request

Application Received: 20110302

Characterization of Service Received:

Narrative Reason for Discharge: , DRUG ABUSE
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       ER R ONEOUS ENTRY (OTHER)

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20001229 - 20010122     Active:

Period of Service Under Review:
Date of Current Enlistment: 20010123     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020306      Highest Rank/Rate: EM3
Length of Service: Y ear M onth 14 D ay s
Education Level:        AFQT: 84
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.86

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

SCM: NONE SPCM: NONE CC: NONE Retention Warning Counseling: NONE

NJP : 1

- 20011206 :      Article 81 (Conspiracy, conspired with another Sailor to obtain the front of a military I.D. card)
         Article 92 (Failure to obey order or regulation, willfully left work and went to the NEX)
         Awarded: RIR FOP RESTR ORAL ADMONITION Suspended: RIR

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

         “ MILPERSMAN 1910-130 ”
         “ JFU ”

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 seeks a change in his N arrative R eason for S eparation for employment purposes.
2.       The Applicant contends he informed his recruiter that he attended a drug rehabilitation program when he was 15 years old but was told not to mention it.
3.       The Applicant requests that the Narrative Reason for Separation be chang ed to Erroneous Entry (Other).

Decision

Date: 20 1 2 0517             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 nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 81 (Conspiracy, 1 specification) and Article 92 (Failure to obey order or regulation, 1 specification) . The Applicant was administratively processed for separation due to Fraudulent Enlistment when it was discovered that he had attended an intensive , outpatient , drug rehabilitation program prior to enlistment . T he Applicant also had a pre-service drug waiver for using marijuana prior to entering the Navy. When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel and s ubmit a written statement . The Applicant was not entitled to an administrative board.

: (Non - decisional) The Applicant seeks a change in his N arrative R eason for S eparation for employment purposes. The NDRB has no authority to change a narrative reason for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends he informed his recruiter that he attended a drug rehabilitation program when he was 15 years old but was told not to mention it. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support his claim that he informed his recruiter that he attended a drug rehabilitation program when he was 15 years old and that his recruiter told him not to mention it. The Applicant’s statement alone does not overcome the government’s presumption of regularity in this case. Although the Applicant may have had no fraudulent inten t ions, he had an obligation to truthfully answer all questions regarding his pre-service drug involvement and drug rehabilitation history regardless of what his recruiter might have instructed him to do. Relief denied.

: ( Decisional ) ( ) . The Applicant requests that the Narrative Reason for Separation be changed to Erroneous Entry (Other). The NDRB determined that although separation was warranted, the N arrative R eason for S eparation assigned at the time of discharge was incorrect. The Applicant’s service record contained documentary evidence reflecting that he was notified only of being discharged due to an erroneous enlistment. H is command improperly discharged him for fraudulent enlistment. The Applicant’s service record also reflected that the circumstances surrounding the erroneous entry involved illegal drugs. Because the reason for his separati on from the Navy was based on his pre-service drug involvement and drug rehabilitation, t he NDRB concluded that the N arrative R eason for S eparation shall change from Fraudulent Entry in to Military Service (Drug Abuse) to Erroneous Entry (Drug Abuse) . The Applicant’s request for a change to Erroneous Entry (Other) is not the most accurate available narrative reason for why he was discharged. Partial relief granted.

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 that although separation was warranted, and the assigned C haracter of S ervice was equitable , the assigned N arrative R eason for S eparation was improper. Therefore, the awarded characterization of service shall but t he N arrative R eason for S eparation shall change to . Additionally, the Separation Code reflected on the DD Form 214 shall change to JFU and the Separation Authority shall change to MILPERSMAN 1910-130. 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 32, effective 26 April 2001 until
21 August 2002, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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NAVY | DRB | 2011_Navy | ND1100958

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