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NAVY | DRB | 2011_Navy | ND1101115
Original file (ND1101115.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20110324
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)        20020529 - 20020605     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20020606     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070403      Highest Rank/Rate: SN
Length of Service: Y ear( s ) M onth( s ) 22 D a y ( s )
 Education Level:        AFQT: 46
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.67

Awards and Decorations ( per DD 214):     

P eriods of CONF/UA:      UA 20040224 - 20040325 (31 days)         Pre-Trial CONF 20040325 - 20040524 (60 days)
                  CONF 20040525 - 20040731 (67 days)

NJP :
- 20030708 :      Article (Absence without leave)
         Awarded: (to E-2) (60 days) Suspended:

SPCM:

- 20040521 :       Art icle (Unauthorized absence 20040224 until 2004032 6 , 3 1 days )
         Art icle ( Wrongful use, possession, etc ., of controlled substances, 5 specifications )
                  Specification 1: Introduce d cocaine onto a n installation , on or about 20031209.
                  Specification 2: Introduce d m ethamphetamines onto a n installation , on or about 20031209.
                  Specification 3: Possess ed h ydrocodone b itartrate ( v icodin) , on or about 20031209.
                  Specification 4: Possess ed a lprozolam ( x anax) , on or about 20031209.
                  Specification 5: Use d cocaine , on or about 20031209 .
         Sentence : CONF 5 months (Pre-trial CONF: 20040327-20040525, 60 days; CONF: 20040525-20040731, 67 days) RIR (to E-1) BCD

SCM:     CC:

Retention Warning Counseling :

- 20030708 :       For violation of UCMJ, Article 86, A bsence 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:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 19 September 2005 until 18 December 2007, Article 5815-010, EXECUTING A DISHONORABLE OR BAD CONDUCT DISCHARGE.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications .

C . 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.        Applicant contends the misconduct for which he was separated is mitigated by hi s substance abuse that started while deployed aboard ship in support of wartime operations.
2.       Applicant contends command impropriety in that he was not provided adequate mental health assistance.

Decision

Date: 20 1 2 06 07             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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. With respect to a discharge adjudged by a court-martial case, 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. In response to the Applicant ’ s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. The Applicant ’ s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The Applicant identif ied two decisional issues for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to his discharge and the punitive discharge process to determine whether his discharge warranted clemency on the grounds of equity. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) retention warning, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave ) , and S pecial C ourt- M artial f or of the UCMJ : Article 86 ( Absence without leave , 24 February-25 March 2004, 31 days ) , Article 112a (Wrongful use, possession, etc . of a controlled substance, 5 specifications: W rongfully i ntroduce d cocaine onto a military installation , Point Loma Submarine Base , CA while attending substance abuse rehabilitation treatment, on or about 9 December 2009; wrongfully i ntroduce d m ethamphetamines onto a military installation, Point Loma Submarine Base , CA while attending substance abuse rehabilitation treatment , on or about 9 December 2009; wrongfully p ossess ed h ydrocodone b itartrate ( v icodin) , on or about 9 December 2003; p ossess ed a lprozolam ( x anax) , on or about 9 December 2003; and wrongfully used cocaine , on or about 9 December 2003 ). Based on the serious offenses committed by the Applicant, his command referred him for trial by S pecial C ourt -M artial. On 21 May 2004, the Applicant was found guilty of violations of UCMJ Articles 86 and 112a (five specifications) and sentenced to forfeiture of pay, confinement for five months, reduction in rank to E-1, and a B ad C onduct D ischarge. On 18 July 2005, the Navy Marine Corps Court of Criminal Appeals reviewed the Applicant’s record of trial and upheld the court - martial findings and the sentence approved by the C onvening A uthority. The Applicant was separated from the Marine Corps on 3 April 2007 with a Bad Conduct Discharge due to Court-Martial.

Issues 1-2 : (Decisional) ( ) . The Applicant contends the misconduct for which he was separated was mitigated by his substance abuse that started while deployed aboard ship in support of wartime operations. Additionally, t he Applicant contends command impropriety in that he was not provided adequate mental health assistance. T he Board conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for equity and to determine whether clemency was warranted. The Applicant asserts that due to his ship being at sea for more than 30 days while making its way toward Kuwait in support of combat operations, members of the crew were given beer ( including underage Sailors like the Applicant) to “ease their mind . ” He additionally contends that the “weight of being at war” was causing him problems, to include his substance abuse, and that he was not provided the appropriate resources to deal with his issues even after speaking with a c haplain . The NDRB found no merit to his arguments. The Board conducted an exhaustive review of the records and found no evidence to support , nor did the Applicant provide any evidence to indicate , that he attempted to u s e , other than the chaplain, the numerous services available for service members who undergo personal problems during their enlistment s, such as Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross. In fact, the NDRB found that the Navy offered the Applicant intensive treatment for his substance abuse,

but the Applicant failed to complete this treatment. Moreover, t he Applicant’s service record clearly reflects “ serious offenses ” committed by the Applicant that include five violations of UCMJ Article 112a and a 31 - day period of unauthorized absence . The Applicant was advised on and acknowledged his understanding of the US N Drug Policy on 28 May, 15 August, and 9 September 2002. He was fully aware there is a zero - tolerance policy for drug abuse , and he acknowledged the consequences. While he may feel personal stress , being at sea , or being offered two beers while underway w ere the underlying cause s of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. Further, a n Evaluation Report (dated 28 August 2002 - 7 July 2003) located within the Applicant’s record contained the following comments : “…his performance has been marred by liberty incidents and verbal outbursts that, unfortunately, have come to define his character … . (the Applicant) must correct the destructive pattern that he has set for himself and build upon his quality as a worker. Only then will his value to the Navy be realized … . ” After careful consideration of all the available documentation, and with no evidence within the record nor documentation submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined the Applicant’s issue to be without merit and did not provide a basis for which clemency could be granted. Clemency 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 the punitive 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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