Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101903

Original file (ND1101903.rtf) Auto-classification: Denied

ex-MMFN, USN

Current Discharge and Applicant’s Request

Application Received: 20110803

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)        20000714 - 20010228     Active: USN 20010301 - 20030403 HON

Period of Service Under Review:
Date of Current Enlistment: 20030404     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050907      Highest Rank/Rate: MM2
Length of Service : Y ear s M onth s 04 D a ys
Education Level:        AFQT: 82
Evaluation M arks:         Performance: 4.5 ( 2 )      Behavior: 4.5 ( 2 )        OTA: 4.43

Awards and Decorations ( per DD 214):      NDSM GWOTSM KDSM GWOTEM

Periods of UA /C ONF :

NJP: 2

- 20050812 :      Article (Wrongful use, possession, etc. of controlled substances)
         Awarded: RIR FOP Suspended:

- 20050830 :      Article (Wrongful use, possession, etc. of controlled substances)
         Awarded : RIR FOP RESTR Susp ended: FOP

SCM: NONE SPCM: C C : Retention Warning Counseling : NONE

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, KOREAN DEFENSE SERVICE MEDAL, RIFLE MARKSMAN , LETTER OF COMMENDATION ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20010301 UNTIL 20030403 ”
Block 28, Narrative Reason For Separation should read “ MISCONDUCT (DRUG ABUSE) ”

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until 1 June 2008, 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 seeks an upgrade in order to qualify for the G. I. Bill.
2.       The Applicant contends his discharge was based on an isolated incident in four years of honorable service.
3.       The Applicant contends his mental condition caused his self-medication.

Decision

Date: 20 1 2 0517             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 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 two nonjudicial punishments (NJPs) for violation s of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc. of controlled substances, 2 specifications) . The Article 112a misconduct NJPs were approximately 18 days apart. The controlled substance for each NJP was not found in the Applicant’s record. However, the Applicant’s medical record reflected cannabis abuse in the separation physical documentation. The Applicant a pre-service drug waiver for using marijuana 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 or not the Applicant waived his rights to consult with a qualified counsel and submit a written statement . The Applicant has a GKK separation code on his DD Form 214 , which indicates he exercised his right to re quest an administrative board.

: (Nondecisional) The Applicant seeks an upgrade in order to qualify for the G. I. Bill. 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 , and 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.

: (Decisional) ( ) . The Applicant contends his discharge was based on an isolated incident in four years of honorable service. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade , performance, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge , despite two separate violations of UCMJ Article 112a . The NDRB determined an upgrade would be inappropriate. Relief denied.

: (Decisional) ( ) . The Applicant contends his mental condition caused his self-medication through the use of cannabis. The NDRB conducted an extensive review of the Applicant’s medical record. There is no evidence found in the record , nor did the Applicant provide any, that supports the Applicant’s claim that he experienced mental health issues while in service . Additionally, his separation physical documentation contained no references to any mental health issues. Furthermore, the Applicant provided no evidence of his mental health care, prescriptions, and current care that he refers to in his statement. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and service record 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 15 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

Similar Decisions

USMC | DRB | 2007_Marine | MD0700192

Original file (MD0700192.rtf) Auto-classification: Denied

Applicant claims his medical issues contributed to his misconduct and adverse discharge. (2) Wrongfully possess some amount of marijuana Article 112a: Wrongfully use marijuana.Date Applicant Submitted SILT request: 20051109 Consulted with or Waived Counsel: Acknowledged Understanding Elements: Acknowledged Guilt to: Article(s) 86 and 112a BCD/DD authorized for offense(s) Acknowledged Consequences of OTH: Type of Characterization Requested: Commanding Officer Recommendation...
USMC | DRB | 2015_Marine | MD1500790

Original file (MD1500790.rtf) Auto-classification: Denied

The NDRB’s review of the Applicant’s request for discharge upgrade determined that there was not any mental health concerns present in his request for discharge review to this board to consider. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for...
USMC | DRB | 2007_Marine | MD0700880

Original file (MD0700880.rtf) Auto-classification: Denied

: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades...
NAVY | DRB | 2009_Navy | ND0902155

Original file (ND0902155.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Additionally, despite the Applicant’s previous five years of honorable service, processing for administrative separation is mandatory for violation of UCMJ Article 112a (Wrongful use of a controlled substance: marijuana).Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board...
NAVY | DRB | 2010_Navy | ND1002057

Original file (ND1002057.rtf) Auto-classification: Denied

Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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. ” Additional Reviews : After a document review has been conducted, former members are...
NAVY | DRB | 2012_Navy | ND1200119

Original file (ND1200119.rtf) Auto-classification: Denied

The NDRB determined illegal use of marijuana, absence without leave, failure to obey orders, and willfully disobeying a superior commissioned officer were all conscious decisions and violated the tenets of honorable and faithful service.Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for...
NAVY | DRB | 2011_Navy | ND1200119

Original file (ND1200119.rtf) Auto-classification: Denied

The NDRB determined illegal use of marijuana, absence without leave, failure to obey orders, and willfully disobeying a superior commissioned officer were all conscious decisions and violated the tenets of honorable and faithful service.Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for...
USMC | DRB | 2007_Marine | MD0700236

Original file (MD0700236.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that Administrative Corrections to the Applicant’s DD 214 The NDRB did note administrative error(s) on the original DD Form 214: “JJE2 ” “ COURT MARTIAL”The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate. If a former member has...
NAVY | DRB | 2015_Navy | ND1501298

Original file (ND1501298.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The NDRB’s review is limited to a determination of the propriety and equity of the discharge by its governing regulations and, therefore, has no authority to change a service member’s discharge status from an administrative separation to a retirement. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...
NAVY | DRB | 2015_Navy | ND1500861

Original file (ND1500861.rtf) Auto-classification: Denied

Types of Documents Submitted/ReviewedRelated 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 Applicant could...

Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1101903

Similar Decisions