Search Decisions

Decision Text

NAVY | DRB | 2011_Navy | ND1102058
Original file (ND1102058.rtf) Auto-classification: Denied

ex-HN, USN
Current Discharge and Applicant’s Request
Application Received: 20110823
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)        NFIR - 19990304         Active:  
         USNR (DEP)        19990304 - 19990719

Period of Service Under Review:
Date of Current Enlistment: 19990720     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020722      Highest Rank/Rate: HM3
Length of Service : Y ear s M onth s 03 D a ys
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 1.67 ( 3 )       OTA: 2.61

Awards and Decorations ( per DD 214):      MUC NDSM

Periods of UA /C ONF :

NJP: 2

- 20010607 :      Article 92 (Failure to obey order or regulation , 20010505 )
         Article 134 (General Article, 2 specifications , 20010505 )
                  Specification 1: Disorderly conduct
                  Specification 2: Drunkenness
         Awarded: RESTR EPD Suspended:

- 20020627 :      Article (Wrongful use, possession, etc. of a controlled substance , Marijuana )
         Awarded: RIR (to E-2) FOP RESTR EPD Suspended:

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:

          “ E3 ”
         Block 12h, Effective Date of Pay Grade, should read: “02 06 27 ”

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 33, effective 16 July 2001 until 21 August 2002, 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 obtain v eteran b enefits.
2.       Applicant contends he did not use illegal drugs prior to testing positive for use of Marijuana on a urinalysis test.
3 .       A pplicant contends his honorable service was not considered prior to his administrative separation.
Decision

Date: 20 1 2 07 25             Location: Washington D.C .        R epresentation : NONE

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 two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation , 5 May 2001 ) , Article (Wrongful use, possession, etc. of a controlled substance, Marijuana), and Article 134 (General Article, 2 specifications : Disorderly conduct ; and Drunkenness on 5 May 2001 ). The record also revealed the Applicant admitted to illegal pre-service use of marijuana one time prior to entering the Navy . Additionally, th e Applicant tested positive for use of marijuana while in the Delayed Entry Program (DEP) and was discharged from the DEP on 4 March 1999 . Based on the Article 112a violation committed while in service , processing for administ rative separation is mandatory 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 separation code HKK listed on the Applicant’s DD Form 214 indicates he waived his right to request an administrative board. The Applicant was separated from the Navy on 22 July 2002 with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse).

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran 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.
: (Decisional) ( ) . The Applicant contends he did not use illegal drugs prior to testing positive for use of Marijuana on a urinalysis test. T he Board conducted a detailed review of the available records to determine whether his discharge met the pertinent standards for propriety and equity. Since the Applicant’s records were incomplete, there was little information regarding the circumstances surrounding the Applicant’s violation of UCMJ Article 112a. However, the record did reflect the Applicant admitted to marijuana use prior to his enlistment in the Navy and also tested positive on the drug and alcohol test while enlisted in the Delayed Entry Program, which then resulted in his administrative discharge (entry level separation). Lastly, the separation code HKK listed on the Applicant’s DD Form 214 indicates he waived his right to an administrative separation board hearing after being notified of pending administrative separation processing , which effectively waived his right to rebut the proposed separation and to provide evidence and argument s to defend himself in front of a n impartial three - member panel. After careful consideration of the available evidence, and with no evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined this issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.
: (Decisional) ( ) . The Applicant contends his honorable service was not considered prior to his administrative separation. Despite a service member’s prior record of se rvice, certain serious offenses warrant separation from the N aval S er vice in order to maintain good order and discipline ; violation of Article 112a meets this standard . The Applicant was fully aware there is a zero - tolerance policy for drug abuse , and he understood the

consequences. While he contends his innocence, the available evidence reflects his misconduct was willful and demonstrated he was unfit for further service. Moreover, the Applicant failed to provide any evidence to rebut the presumption of regularity in th is case. 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, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, especially considering his grade and length of service, and falls short of w hat is required for an upgrade in the characterization of service. 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

Similar Decisions

  • NAVY | DRB | 2010_Navy | ND1000464

    Original file (ND1000464.rtf) Auto-classification: Denied

    No relief based on propriety of the discharge action is warranted.The Applicant contends that he was separated due to severe anger issues that resulted from a physical assault upon him, and his discharge characterization of service was inequitable because he was not referred for mental health evaluation and treatment. A review of the Applicant’s service record and discharge recommendation yielded no indications of separation due to any anger management issues; the sole criteria for the...

  • NAVY | DRB | 2010_Navy | ND1000581

    Original file (ND1000581.rtf) Auto-classification: Denied

    A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.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 separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from...

  • USMC | DRB | 2010_Marine | MD1000553

    Original file (MD1000553.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, court-martial proceedings, 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...

  • NAVY | DRB | 2015_Navy | ND1500490

    Original file (ND1500490.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has...

  • NAVY | DRB | 2007_Navy | ND0700807

    Original file (ND0700807.doc) Auto-classification: Denied

    Date: 20071212 Location: Washington D.C Representation: Discussion Issue 1: 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. The Applicant’s service was marred by one non-judicial punishment for a violation of Uniform Code of Military Justice, Article 112a (Wrongful use of controlled substance). BY SEPARATION Recommendation on Separation: BY Recommendation on...

  • NAVY | DRB | 2009_Navy | ND0900253

    Original file (ND0900253.rtf) Auto-classification: Denied

    ” Separation in lieu of court-martial is based on the voluntary request of the member, considered comparable to a plea bargain and normally characterized as “Under Other Than Honorable Conditions”.The characterization of service is based on the entire enlistment period, not portions of it.Since the Board could not fully evaluate the Applicant’s conduct during his second enlistment,the Board relies on a presumption of regularity in this case. After a thorough review of the available...

  • NAVY | DRB | 2011_Navy | ND1101806

    Original file (ND1101806.rtf) Auto-classification: Denied

    Issue 5: (Decisional) (Propriety) RELIEF NOT WARRANTED. She tested positive for THC, was informed of discharge proceedings, elected an administrative separation board, and was properly and equitably discharged with a General (Under Honorable Conditions) characterization of service for Misconduct (Drug Abuse). ” 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...

  • USMC | DRB | 2010_Marine | MD1001821

    Original file (MD1001821.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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 governmental affairs unless there is...

  • USMC | DRB | 2013_Marine | MD1301279

    Original file (MD1301279.rtf) Auto-classification: Denied

    ” Although the Applicant may feel that he was a “good Marine,” his record reflects that he was a disciplinary and administrative burden on his command and warranted administrative separation Under Other Than Honorable Conditions for Misconduct (Drug Abuse). 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...

  • NAVY | DRB | 2014_Navy | ND1401104

    Original file (ND1401104.rtf) Auto-classification: Denied

    Representation: 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...