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NAVY | DRB | 2011_Navy | ND1102047
Original file (ND1102047.rtf) Auto-classification: Denied

ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20110831
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 1910-146

 Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19960122 - 19960331     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960401     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19971020      Highest Rank/Rate: FA
Length of Service : Y ear M onth s 20 D a ys
Education Level:        AFQT: 53
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

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

Periods of UA /C ONF :

NJP: 1

- 19970828 :      Article (Wrongful use, possession, etc. of a controlled substance , Marijuana )
         Article 134 (General Article, 2 specifications )
                  Specification 1: Underage drinking on 19970725
                  Specification 2: Wrongfully urinate in public on 19970725
         Awarded : RIR (to E-1) FOP RESTR EPD Susp ended:

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

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

          “ MISCONDUCT ”

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 :        


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

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to increase employment opportunities.
 2.       Applicant contends his discharge was not consistent with the policies and traditions of the United States Navy.
 3.       Applicant contends he was never treated for his addictions to alcohol and marijuana.

Decision

Date: 20 1 2 07 25             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. Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the Board completed a thorough review of the available documentation to determine whether discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession, etc. of a controlled substance, Marijuana , between 6-26 July 1997, as evidenced by NAVDRUGLAB msg ) and Article 134 (General Article, 2 specifications : Underage drinking on 25 July 1997; and w rongful urinat ion in public on 25 July 1997) . The record also revealed that during the enlistment accession process, the Applicant admitted to illegal us e of marijuana two times prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory per the Naval Military Personnel Manual (MILPERSMAN) . The NDRB did not have the Applicant’s administrative separation packa ge to determine whether he exercised or waived his rights to consult with a qualified counsel , s ubmit a written statement , and request an administrative separation board . The HKK separation cod e listed on his DD Form 214 indicates he waived his right to request an administrative board. The Applicant was separated from the Navy on 20 October 1997 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

: (Nondecisional) The Applicant seeks a discharge upgrade to increase 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 contends his discharge was not consistent with the policies and traditions of the United States Navy. C ertain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline; violation of Article 112a meets this standard. The Applicant admitted to illegal use of marijuana during his enlistment accession processing , which required a telephonic interview and discussion of the Navy ’s z ero -t olerance d rug use p olicy with the Commanding Officer of the Navy Recruiting District before he could enlist in January 1996. He was fully aware there is a zero - tolerance policy for drug use in the Navy , and he acknowledged the consequences. T he record clearly reflects his willful misconduct 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. Per the MILPERSMAN, w hen a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a member of the Naval Service. The Applicant’s conduct reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, regardless of his grade or length of service, and falls short of w hat is required for an upgrade in the characterization of service. H is discharge was completely consistent with the policies and traditions of the U.S. Navy. Relief denied.

: (Decisional) ( ) . The Applicant contends he was never treated for his addictions to alcohol and marijuana. The Applicant’s service records indicate he was referred for substance abuse screening on 16 September 1997 to determine whether he was addicted or an abuser of drugs and alcohol. The drug and alcohol abuse report screening form in the record states the Applicant was determined to be an abuser (not dependent) of marijuana and recommended no rehabilitation treatment. Additionally, the report stated , “(the Applicant) has a below average work history. Has no potential for further service , ” and recommended the Applicant be separated from Naval Service. Further, th ere is no evidence in the record, nor did the Applicant provide any evidence , to indicate he attempted to utilize 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. If the Applicant believed he had an alcohol or marijuana problem, it was his responsibility to ask for help. After careful consideration of all the available evidence, the NDRB determined this issue did not provide a basis for which relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice and r ecord e ntries , 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.

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), 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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