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NAVY | DRB | 2012_Navy | ND1200175
Original file (ND1200175.rtf) Auto-classification: Denied

ex-FN, USN
Current Discharge and Applicant’s Request
Application Received: 20111025
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)        19960120 - 19960124     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19960125     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19980312      Highest Rank/Rate: FN
Length of Service: Year(s) Month(s) 18 D ay(s)
 Education Level:        AFQT: 36
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :

- 19970401 :      Article (Absence without leave)
         Article (General A rticle, to wit: incapacitated for the proper performance of duty)
         Awarded: Suspended:

S CM :    SPCM:

C C :

- 19971105 :      Offense: Knowingly and intentionally conspiring to import marijuana into the United States
          Sentence: NFIR [Extracted from Commanding Officer letter dated 19971215.]
- 19980126 :       Offense: Offense words (provoking) and disorderly conduct
         Sentence : Fine $250.00 and attend A IDS counseling

Retention Warning Counseling:

- 19960126 :      For fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information, to wit: Failure to yield right of way, 10/95, paid find of $75.00.

- 19970401 :      For unauthorized absence and incapacitated for the proper performance of duties as a result of wrongful previous overindulgence in intoxicating liquor.





Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ ”
         “ MILPERSMAN 1910-142 ”

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 29 March 2000,
Article 1910-142, Separation By Reason Of Misconduct - Commission of a Serious Offense.

 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.       The Applicant requests an upgrade to have access to military service health benefits.
2.       The Applicant contends he was not afforded due process with an administrative board from his command.
3.       The Applicant contends he was coerced to accept his discharge characterization through fear of assault from shipmates .
4.       The Applicant contends he was not aware of the drug smuggling.
5.       The Applicant wants to provide a better life for his family.

Decision

Date: 20 1 2 1026             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 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 standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave, 1 specification ) and Article 134 ( General A rticle, to wit: incapacitated for the proper performance of duty, 1 specification) , and two civilian convictions f or knowingly and intentionally conspiring to import marijuana into the United States and for offensive words (provoking) and disorderly conduct. Based on the offenses committed by the Applicant, command administratively processed for separation . When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board and a General Court-Martial Convening Authority review .

: (Nondecisional) The Applicant requests an upgrade t o have access to military service health 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 re-characterization 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 was not afforded due process with an administrative board from his command. During the separation proceedings, the Applicant waived his right to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the S eparation Authority . Furthermore, the Applicant mentioned consulting with an attorney and deciding against requesting an administrative board , because it would prolong his time waiting for a discharge and expose him to two S ailors implicated in the drug trafficking charge and who eventually assault ed him. If the Applicant believed there were mitigating circumstances to his separation , it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. Relief denied.
: (Decisional) ( ) . The Applicant contends he was coerced to accept his discharge characterization through fear of assault from shipmates. The Applicant contends he was wronged by his command , because they did not provide a safe environment while he awaited disposition of his civilian charges. The record contained no evidence of any w rongdoing by the Applicant’s command or anyone else in the discharge process nor did the Applicant provide any evidence of such threatening events. Statements alone, without sufficient documentary evidence, are not enough for the NDRB to form a basis of relief. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends he was not aware of the drug smuggling. In accordance with the Naval Military Personnel Manual, service members may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings or civilian conviction, however, the offense must be substantiated by a preponderance of evidence. The Applicant’s civilian conviction case went to trial where he, via a plea bargain agreement, agreed to plead guilty to knowingly and intentionally conspiring to import marijuana in to the U nited States from Mexico. The guilty conviction in civilian court is sufficient evidence for the government to meet the preponderance of evidence threshold. According to the Applicant, his case went to trial and he received only 2 years probation after 30 days of confinement in the county jail. The Applicant also admitted during his testimony that he was aware of the intent to profit from such an operation but contends he did n o t know it was going to happen on that particular date. Relief denied.

Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant wants to provide a better life for his family. The NDRB has no authority to provide an upgrade so that an Applicant can provide a better life for his family. The NDRB is solely authorized to review the propriety and equity of a discharge. After a complete review of the Applicant’s records and after considering his testimony, the NDRB determined his discharge Under Other Than Honorable Conditions is an accurate reflection of his Navy enlistment and that an upgrade is not warranted. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is not eligible for further reviews from the NDRB but 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 . 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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