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NAVY | DRB | 2011_Navy | ND1102056
Original file (ND1102056.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20110826
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)        20070823 - 20070912     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070913     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090413      Highest Rank/Rate: NFIR
Length of Service : Y ear M onth s 00 D a ys
Education Level:        AFQT: 49
Evaluation M arks:         Performance: 1.0 ( 2 )      Behavior: 1.0 ( 2 )        OTA: 1.00

Awards and Decorations ( per DD 214):      NDSM

Periods of UA : 20081203 - 20090103 (31 days)             CONF:

NJP: 1

- 20090128 :      Article 86 (Absenc e without leave, UA, 31 days, 20081203- 20090102 )
         Awarded: FOP RESTR (60 days) Suspended:

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

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 23, effective 2 June 2008 until 9 November 2009, 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.        Applicant seeks a discharge upgrade to re-enlist in the U.S. Armed Forces.
2.       Applicant contends immaturity contributed to his misconduct.
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 (including his medical records) to determine whether discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, UA, 0545 on 3 December 2008 to 1400 on 3 January 2009, 31 days). The Applicant was administratively processed for separation by his command for violation of UCMJ Article 112a (positive urinalysis test for THC as referenced in his Evaluation Report dated 16 Jul 2008 - 10 April 2009) . Violation of Article 112a requires mandatory processing for administ rative separation per the Naval Military Personnel Manual (MILPERSMAN) . Since the NDRB did not have the Applicant’s administrative separation package documentation available, it could not determine whether the Applicant exercised or waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board . The HKK separation code listed on the Applicant’ s DD F o r m 214 indicates he waived his right to request an administrative board hearing. The Applicant was separated from the Navy on 13 April 2009 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

: (Nondecisional) The Applicant seeks a discharge upgrade to re-enlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends i mmaturity contributed to his misconduct. While he may feel his youth or immaturity was the underlying cause of his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service. Therefore, t he NDRB determined that the Applicant ’ s youth or age was not a mitigating factor in his misconduct . In an Evaluation Report dated 16 July 2008 - 10 April 2009, the reporting senior states , “…(The Applicant) has shown the need for constant supervision and guidance, missed multiple musters while under a restricted status, demonstrated a pattern of misconduct, and had a positive urinalysis test for THC (marijuana). (The Applicant’s) little desire to become proficient in his daily duties and tasks has become problematic. (The Applicant) has made numerous errors in judgment and has shown no intentions of improving . ” The NDRB recognizes that serving in the U.S. Navy is challenging. However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. A General (Under Honorable Conditions) discharge is warranted when a Sailor’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. An U nder O ther T han H onorable C onditions discharge is warranted when a member engages in

conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Applicant’s conduct (includ ing a 31 day period of UA and a positive urinalysis test for marijuana) , which forms the primary basis for determining the character of service, reflects the Applicant failed to meet the requirements of conduct expected of all Sailors and falls far short of what is required for an upgrade in the characterization of service. Accordingly, 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.


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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