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NAVY | DRB | 2011_Navy | ND1101340
Original file (ND1101340.rtf) Auto-classification: Denied

ex-IS3, USN
Current Discharge and Applicant’s Request
Application Received: 20110503
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)        20051130 - 20060207     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060208     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100723      Highest Rank/Rate: IS2
Length of Service: Y ear s M onth s 16 D a ys
Education Level:        AFQT: 82
Evaluation M arks:         Performance: 4.0 ( 5 )      Behavior: 2.8 ( 5 )        OTA: 3.46

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

Periods of UA /C ONF :

NJP : 1

- 20100618 :      Article 92 (Failure to obey order or regulation - willful use of Spice)
         Awarded: RIR FOP RESTR EPD Suspended: FOP EPD

S CM : NONE SPCM: NONE C C : NONE Retention Warning Counseling : NONE

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

          “ MISCONDUCT (SERIOUS OFFENSE) ”

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:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until 17 August 2011, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92.



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

Applicant’s Issues

 1.        The Applicant contends his discharge was based on an isolated incident in 54 months of service with no other adverse action.
2.       The Applicant contends he meets the requirement to have his first four years characterized as honorable service as other serviceme mbers who re-enlist at that time.
3.       The Applicant contends his nonjudicial punishment (NJP) paperwork had erroneous data and that it was signed under pressure. Also, he contends that he was not proven innocent or guilty of Spice use.
4 .       The Applicant believes his post-service conduct is worthy of consideration.
Decision

Date : 20 1 2 07 1 0             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 Applicant’s record of service included one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation - willful use of Spice). Based on the offense committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived his rights to consult with a qualified counsel , s ubmit a written statement , and request a General Court-Martial Convening Authority review . The Applicant was not entitl ed to an administrative board.

: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in 54 months of service with no other adverse action. He further contends that his record of service was outstanding and that he was awarded a Navy and Marine Corps Achievement Medal and a Good Conduct Medal. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of UCMJ Article 92 is considered a serious offense per the Manual for Courts-Martial and warrant s processing for administrative separation regardless of grade, performance, awards, or time in service. In accordance with the Naval Military Personnel Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence . The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The Applicant was provided the opportunity to provide a written statement rebutting the charge and consult with qualified counsel , but he waived th ose right s , thus accepting the discharge recommended in the letter of notification. Relief denied.

: (Decisional) ( ) . The Applicant contends he meets the requirement to have his first four years characterized as honorable service as other serviceme mbers w ho re-enlist at that time. Although the Applicant had served h is original 4 -year contract, he agreed to a 24-month extension. C haracterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service plus any extensions prescribed by law or regulations or effected with the consent of the member. There is no evidence in the record that the Applicant re - enlisted after his first 4 years of service. Rather, he agreed to an extension of his original enlistment, and so his characterization of service was properly determined to be General (Under Honorable Conditions) for his 4 years, 5 months, and 16 days of service. R elief denied.


: (Decisional) ( ) . The Applicant contends his nonjudicial punishment paperwork had erroneous data and that it was signed under pressure. He also contends that he was not proven innocent or guilty of Spice use . 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 issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged for using Spice or that his charge paperwork w as erroneous. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Moreover, the Board found no inconsistencies in the record of service or the Applicant’s documented NJP where he was found guilty of violating UCMJ Article 92 by willfully using Spice . The Applicant’s Commanding Officer in his recommendation for administrative separation of the Applicant stated that the Applicant self-admitted to using Spice. Using Spice has always been a violation of SECNAVINST 5300.28D (Military Substance Abuse Prevention and Control), which requires, at a minimum, mandatory processing for an administrative separation. Even though the substance is not illegal, it is used with the intention of getting high, which is a violation of the Secretary of the Navy Instruction and UCMJ Article 92. Relief denied.

4 : (Decisional) ( ) . The Applicant believes his post-service conduct is worthy of consideration. The NDRB considers 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. The Applicant provided a personal statement as well as a college registration and class schedule for Lamar University . The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violation. Relief denie d.

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 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), 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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