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NAVY | DRB | 2011_Navy | ND1100960
Original file (ND1100960.rtf) Auto-classification: Denied

ex-EWSR, USN
Current Discharge and Applicant’s Request
Application Received: 20110302
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)        19950223 - 19950410     Active:  

Period of Service Under Review:
Date of Current Enlistment: 199 5 0411     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970731      Highest Rank/Rate: EWSN
Length of Service : Y ear s M onth s 21 D a ys
Education Level:        AFQT: 76
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 1.7 ( 3 )        OTA: 2.78

Awards and Decorations ( per DD 214):      NDSM SSDR NAVY “ E” AFEM

Periods of UA /C ONF :

NJP: 3
- 19960111 :      Article 134 (Disorderly conduct, drunkenness)
         Awarded: FOP RESTR EPD Suspended: RESTR EPD

- 19961121 :      Article 86 (Absence without leave, UA, 19961115, 1 day)
         Awarded: RIR FOP Suspended:

- 199 70717:      Article 112a (Wrongful use of controlled substance, marijuana)
         Awarded: RIR FOP RESTR EPD Suspended: NONE
SCM: NONE        SPCM:    C C :

Retention Warning Counseling : 2

- 19960111:      For underage drinking
 - 19961121 :       For unauthorized absence on 19961115

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 contends his record of service outweighs his misconduct.
3.       The Applicant believes his post-service conduct is worthy of consideration.
4.       The Applicant seeks an upgrade due to significant personal stressors in his life that led to his misconduct.
5.       The Applicant faults youth and immaturity for his misconduct.
6.       The Applicant contends he did not receive proper medical attention.

Decision

Date : 2012 0301             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 NAVPERS 1070/613 (Page 13) warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( , , 19961115 ), Article (Wrongful use, possession of a controlled substance, , drugs - marijuana ), and Article ( Article , , Disorderly conduct, drunkenness ). The Applicant a pre-service drug waiver for using marijuana 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. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to enhance employment 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.

: (Decisional) ( ) . The Applicant provided a statement describing his performance and accomplishments during the period of enlistment under review , therefore, suggesting that his record of service warrants consideration for upgrading his discharge to Honorable. Despite a service member’s record of service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline. During the 19-month period from J anuary 199 6 through July 1997 , the Applicant received three NJP s for violating Article s 86, 112a, and 134 of the UCMJ. The NDRB concluded that the Applicant’s actions met the requirements to warrant separation for mi sconduct. Even though the Applicant had multiple violations of the UCMJ, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the ch aracterization of the Applicant’ s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends that h is post-service conduct warrants consideration for upgra ding the characterization of his service 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 in civilian life subsequent to leaving the service. The Applicant submitted an American InterContinental University transcript a nd a Dean’s List letter . He also mention ed that he has been drug-free for years and intends to seek employment with state or F ederal agencies upon completion of his degree. Unfortunately, this wa s not sufficient to evaluate his post-service character and conduct. H is efforts needed to have been more

encompassing. H e could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, submission 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. Relief denied.

: (Decisional) ( ) . The Applicant contends that his misconduct was due to youth, immaturity, and significant personal stressors in his life . The NDRB 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 s , 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 , 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) ( ) . The Applicant contends he was never given proper medical attention . Upon review of the Applicant’s medical records, he was admitted to the N aval C linic from 27 September 1996 - 1 October 1996 and diagnosed with adjustment disorder with depressed mood. He was treated and released after having completed 4 days of therapy. T he NDRB determined that the Applicant’s adjustment disorder with depressed mood did not preclude him from being responsible for his actions and concluded that the Applicant’s discharge was proper and the characterization was equitable and consistent with that given others in similar circumstances. 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 . 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

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