Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1101949

Original file (ND1101949.rtf) Auto-classification: Denied

ex-AR, USNR

Current Discharge and Applicant’s Request

Application Received: 20110816

Characterization of Service Received:

Narrative Reason for Discharge: CONVICTION
Authority for Discharge: MILPERSMAN 3640420

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       ENTRY LEVEL SEPARATION

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19941027 - 19941115     Active:

Period of Service Under Review:
Date of Current Enlistment: 19941116     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970716      Highest Rank/Rate: AR
Length of Service:
         Inactive:        Y ear s M onth s 20 D ays
         Active   Y ear s M onth s 01 D ays
Education Level:        AFQT: 54
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

NJP :             S CM :             RETENTION WARNING: NFIR

SPCM:

- 19960426 :      Article (Absence without leave , 2 s pecifications )
         Specification 1: On active duty, on or about 19950702, without authority absent herself from her unit, and did remain so absent until on or about 19950706 , 4 days.
         Specification 2: On active duty, on or about 19950717, without authority, absent herself from her unit, and did remain so absent until she was apprehended and returned to military authority on or about 19960409 , 267 days.
         Article (Illegal us e of a controlled substance , 2 s pecifications )
         Specification 1: On active duty did, on diverse occasions, at or near Lexington Park , Maryland, from on or about 19950706 to on or about 19950711 wrongfully use cocaine .
         Specification 2: On active duty did, on diverse occasions, at or near Hampton, Virginia, on or about 19951102 wrongfully possess 1 gram, more or less, of cocaine .
         Sentence: 60 days (176 days credited for time served)

C C :

- 19970409 :       Offense: Possession of cocaine
         Sentence : P robation, court fines , and license suspended for 6 months

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:

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 96 until 14 December 1998, Article 3640420, DISCHARGE OF ENLISTED PERSONNEL ADJUDGED BY SENTENCE OF COURT-MARTIAL

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.       The Applicant contends her characterization should be Uncharacterized due to only serving a short time in service .
2.       The Applicant contends her discharge characterization is a hindrance and does not accurately reflect her character today .

Decision

Date: 20 1 2 1119             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 NDRB 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’s record of service included Special Court-Martial for violations of the UCMJ: Ar ticle 86 ( Absence without leave, 2 specifications: O n active duty, on or about 19950702, without authority absent herself from her unit, and did remain so absent until on or about 19950706, 4 days , and on active duty, on or about 19950717, without authority, absent herself from her unit, and did remain so absent until she was apprehended and returned to military authority on or about 19960409 , 267 days ) and Article 112a (Illegal use of a controlled substance, 2 specifications: O n active duty did, on diverse occasions, at or near Lexington Park , Maryland, from on or about 19950706 to on or about 19950711 wrongfully use cocaine and on active duty did, on diverse occasions, at or near Hampton, Virginia, on or about 19951102 wrongfully possess 1 gram, more or less, of cocaine ) and one c ivilian conviction for p ossession of cocaine . The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Navy. The Applicant’s service record documents a punitive conviction and punishment, as adjudged by a Special Court-Martial, on 26 April 1996 . A qualified legal defense counsel represented the Applicant throughout the trial by Special Court-Martial process. Given the facts of the case, the Special Court-Martial awarded the Applicant a Bad Conduct Discharge and confinement for a period of 60 days. The case was submitted for review to the U.S. Navy-Marine Corps Court of Criminal Appeals without assignments of error; it was reviewed and the findings were affirmed on 3 June 1996 . Subsequently, the Navy Marine Corps Appellate Leave Activity ordered the Bad Conduct Discharge executed .

: (Decisional) ( ) . The Applicant contends her characterization should be Uncharacterized due to only serving a short time in service. Further, t he Applicant contends her discharge characterization is a hindrance and does not accurately reflect her character today . The Applicant’s service included one Special Court-Martial for violations of UCMJ Articles 86 and 112a. An Uncharacterized discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty. The Applicant’s active-duty service, plus her significant misconduct, warranted the punitive discharge instead of an Uncharacterized separation. Additionally, the Bad Conduct Discharge is an accurate reflection of her service to the Navy. The Applicant submitted no post-service documentation to support an upgrade. The NDRB determined the Applicant’s conduct reflected a significant departure from the conduct expected of a servicemember and that clemency was not warranted. Clemency 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 . Since 15 years have elapsed since the date of her discharge, the Applicant is not eligible for a personal appearance hearing. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

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 | ND1101949

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