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NAVY | DRB | 2012_Navy | ND1200369
Original file (ND1200369.rtf) Auto-classification: Denied

ex-CSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20111206
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)        20080528 - 20080612     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080613     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110124      Highest Rank/Rate: CSSN
Length of Service: Y ear( s ) M onth( s ) 12 D a y ( s )
 Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.84

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20101013 :      Article (Failure to obey order or regulation)
         Article (False official statements)
         Awarded:

S CM :            SPCM: C C :       Retention Warning Counseling :

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 . Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until 17 August 2011, 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article s 92 and 107.


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

Applicant’s Issues

 1.       The Applicant contends he has been denied the opportunity to demonstrate his rehabilitation and finish his Navy career with honor.
 2.       The Applicant contends there were inconsistencies with his Administrative Separation Board (ASB) procedures.
3 .       The Applicant contends he smoked Spice off duty, off base, and not before reporting for duty.
 4 .       The Applicant contends he has remained drug-free and employed since being discharged.
Decision

Date: 20 1 2 1126             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. The 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 for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation ) and Article 107 ( False official statements ) . Based on the offense s committed by the Applicant, command administratively processed for separation . The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel and submit a written statement. However, the Applicant has a HKQ separation code on his DD Form 214 , which indicates he wa ived his right to an administrative board.

: (Decisional) ( ) . The Applicant contends he has been denied the opportunity to demonstrate his rehabilitation and finish his Navy career with honor. The Applicant contends his Administrative Separation Board recommended his discharge be suspended for 12 months to prove he could be rehabilitated to stay in the Navy. Also, his chain of command wrote supporting statements regarding his excellent work performance and recommended that he be retained . The recommendation of an Administrative Separation Board is just that, a recommendation. Per regulations, t he final decision as to whether to retain or separate the Applicant rest ed with Navy Personnel Command. Before deciding to discharge the Applicant, they reviewed the recommendation of the Administrative Separation Board and all supporting statements from his chain of command and from his mentor. There is no right or regulation that mandates a drug user be allowed the opportunity to rehabilitate himself or show that he is worthy of further Naval service. The Navy has a zero-tolerance drug policy, and the Applicant was found to have violated that policy. After a complete review of the separation procedures, the NDRB determined the Applicant was properly and equitably discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense). Relief denied.

: (Decisional) ( ) . The Applicant contends there were inconsistencies with his ASB procedures. He specifically contends that his defense counsel stated to Navy Personnel Command that if they did not approve the ASB’s recommendation for a suspended separation, then a request for a new ASB would be required before they characterized his service as Under Other Than Honorable Conditions. The Applicant’s defense counsel was incorrect. There is no requirement or regulation that allows a servicemember to request a new ASB if Navy Personnel Command does not follow the recommendations of the ASB. The NDRB read the entire Letter of Deficiency written by the Applicant’s defense counsel to Navy Personnel Command and found no reason to change the Applicant’s characterization nor did the NDRB find any impropriety or failure to follow proper separation and ASB procedures. Relief denied.




: (Decisional) ( ) . The Applicant contends he smoked Spice off duty, off base, and not before reporting for duty. Where and when he smoked Spice is irrelevant to the misconduct. A Sailor is under the jurisdiction of the Uniform Code of Military Justice and the Navy’s rules and regulations at all times while on active duty, whether on or off duty or on or off base. He violated the Navy’s drug policy, he was found guilty at NJP, an ASB found that he committed a serious offense, and Navy Personnel Command directed he be discharged Under Other Than Honorable Conditions for Misconduct (Serious Offense). The NDRB found the Applicant’s contention did not warrant an upgrade. Relief denied.

Issue 4: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends he has remained drug-free and employed since being discharged. The NDRB considers 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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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 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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