Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200111

Original file (ND1200111.rtf) Auto-classification: Denied

ex-MIDN 2/C, USN

Current Discharge and Applicant’s Request

Application Received: 20111024

Characterization of Service Received:

Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge: MEMORANDUM FOR SUPT W/ASN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        NONE      Active:

Period of Service Under Review:
Date of Appointment : 20080702    Age at Appointment :
Date of Discharge: 20110120      Highest Rank/Rate: MIDN
Length of Service : NONE
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NIFR

Awards and Decorations ( per DD 214):      Rifle Pistol MUC NDSM

Periods of UA /C ONF :

NJP: NONE         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:

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”

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. Assistant Secretary of the Navy (M&RA) approval letter, dated 20 January 2011.

B. Military Personnel Manual 1531-020 of 21 April 2006, Disposition of Midshipmen Disenrolled from the Naval Academy, Para 6.a.4.

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 requests that his monetary recoupment for his Naval Academy education be waived or mitigated.
2.       The Applicant would like to serve again in the Navy.
3 .       The Applicant contends that he did not know that Spice was covered by the Navy’s drug policy.
4 .       The Applicant contends that his characterization of service and his narrative reason for separation were improper due to him submitting his resignation and not being formally disciplined, charged , or directed to a formal hearing .
5 .       The Applicant contends other Midshipmen who were involved in the Spice scandal were given less punishment.
6.       The Applicant contends his discharge was inequitable, because he received a Grant of Testimonial Immunity, and he cooperated fully with the investigation.

Decision

Date : 20 1 2 09 04             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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant was separated from the U.S. Naval Academy after a Naval Criminal Investigative Service (NCIS) investigation into the use of illegal drugs at the U.S. Naval Academy. The Applicant exercised his rights to consult with a qualified counsel and submitted a written sworn statement during the investigation process. The Applicant’s request for a Q ualified R esignation was accepted as well as an installment agreement with Defense Finance and Accounting Services for reimbursement of the costs for his education .

: (Nondecisional) The Applicant requests that his monetary recoupment for his U.S. Naval Academy education be waived or mitigated . The NDRB has no authority to adjust the amount or terms of the Applicant’s monetary obligation . Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 using DD Form 149 for further relief . Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm .

Issue 2: (Nondecisional) The Applicant would like to serve again in the Navy. 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 Board 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.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends that he did not know that Spice was covered by the Navy’s drug policy. Any substance used with the intention of getting high is a violation of SECNAVINST 5300.28D (Military Substance Abuse Prevention and Control), which requires, at a minimum, mandatory processing for an administrative separation. Relief denied.

: (Decisional) ( ) . The Applicant contends that his characterization of service and his narrative reason for separation were improper due to him not being formally disciplined, charged , or directed to a formal hearing. P er COMDTMIDNINST 1920.1 C , a Qualified Resignation could have only been submitted when a Midshipmen w as accused of an alleged violation and admit ted to the substantial truth of the allegation. In the Applicant’s

Qualified Resignation dated 8 November 2010, t he Applicant stated that his rights in regards to the process of the charges were fully explained to him. In addition, the Applicant admitted to the substantial truth of the allegations of him being in violation of Articles 92 (Failure to obey order or regulation) and 112a ( Wrongful use, possession, etc., of controlled substances) . In the Applicant’s sworn statement to NCIS while in the presence of his attorney, the Applicant admitted to serious misconduct , to include using S pice, E cstasy, psychedelic mushrooms, mescaline, salvia, mephedrone, 5-MEO-DALT, JWH-018, and JWH-215 , as well as to distributing S pice, E cstasy, and mephedrone to other Midshipmen while attending the U.S. Naval Academy . This level of misconduct could have resulted in a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a S pecial or G eneral C ourt- M artial. The Applicant admitted to the substantial truth of the allegations of him being in violation of Articles 92 and 112a. However, his command did not pursue a puni tive discharge but opted to allow the Applicant a more lenient separation through his submittal of a Qualified Resignation , no doubt in consideration of the significant testimony he provided to NCIS . If the Applicant felt the c harges were false , it was his obligation to contest th e allegations at the time they were made , refrain from tendering a request for a Q ualified R esignation , and refrain for making a sworn statement to the contrary. After careful consideration, the NDRB determined the Applicant’s issue of not being afforded due process is without merit and relief is not warranted. Relief denied .

Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends other Midshipmen who were involved in the Spice scandal were given less punishment. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed multiple serious offense s , that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

Issue 6: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his discharge was inequitable, because he received a Grant of Testimonial Immunity, and he cooperated fully with the investigation. In the Grant of Testimonial Immunity, dated 1 December 2010, from the Superintendent of the Naval Academy to the Applicant, the Applicant is “hereby granted testimonial immunity from the use of your testimony or other information given by you (including any evidence directly or indirectly derived from the information you provide) against you in any criminal case…. ” None of his testimony was ever used against the Applicant in any criminal case as charges were never filed against him in a civilian court nor were charges ever preferred to a Special or General Court-Martial, the results of which could have been a punitive (i.e., Bad Conduct or Dishonorable) discharge and confinement. The Superintendent further states, “Additionally, upon determination by me that you have cooperated fully during investigative interviews with prosecuting authorities and have provided full disclosure of your knowledge in a sworn statement in the matters prescribed in paragraph (1), I will recommend to the Secretary of the Navy that he approve your qualified resignation from the U.S. Naval Academy. As you are aware, acceptance of a qualified resignation would be in lieu of processing you within the administrative conduct system or referring charges against you at courts-martial.” The Applicant cooperated fully and was not processed through the administrative conduct system or had charges referred against him at courts-martial, the result of which could have been a punitive discharge or an Under Other Than Honorable Conditions characteriz ation of service at discharge. The Superintendent subsequently recommended to the Secretary of the Navy that he accept the Applicant’s qualified resignation. When submitting a Q ualified R esignation, the final determination as to a servicemember’s characterization of service and narrative reason for separation rests with the Secretary of the Navy. In this case, the authority to accept the resignation was properly assigned to the Assistant Secretary of the Navy (Manpower and Reserve Affairs). After a review of the Applicant’s service, cooperation with NCIS, misconduct that he admitted to, and recommendations from the chain of command, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) assigned a General (Under Honorable Conditions) characterization of service and MISCONDUCT as the narrative reason for separation. The NDRB reviewed the entire process, Applicant’s service , cooperation with being the first one to come forward, NCIS report, Grant of Testimonial Immunity, Qualified Resignation, recommendations from the chain of command , and facts and circumstances unique to this case and determined that the Applicant’s discharge was both proper and equitable. Per the Naval Military Personnel Manual, MISCONDUCT is the correct narrative reason for separation. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s Qualified Resignation letter and the NCIS investigation , 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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NAVY | DRB | 2012_Navy | ND1200111

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