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NAVY | DRB | 2012_Navy | ND1200516
Original file (ND1200516.rtf) Auto-classification: Denied

ex-AM3, USN
Current Discharge and Applicant’s Request
Application Received: 20120105
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: END OF ENLISTMENT

Summary of Service
Prior Service:
Inactive:         USMCR (DEP) 20021219 - 20030114
         US N R      20030318 - 20030326     Active:            20030327 - 20080214

Period of Service Under Review:
Date of Current Enlistment: 20080215     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110214      Highest Rank/Rate: AM2
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: 3.4 ( 5 )      Behavior: 2.8 ( 5 )        OTA: 3.26

Awards and Decorations ( per DD 214):      Rifle EX Pistol (2) (6) EAWS SSDR ICM LoC

Periods of UA /C ONF :

NJP:

         - 20080130:      Article 92 (Failure to obey order, regulation)
                  Article 111 (Drunken or reckless operation of vehicle, aircraft, or vessel)     
         Awarded: Suspended:

- 20100930 :      Article (Wrongful use, possession, etc. of controlled substances)
         Awarded: FOP Suspended:

SCM:     SPCM:    C C :     

Retention Warning Counseling :

         - 20080130:      For violations of UCMJ Article 92 and Article 111; reference NJP dated 20080130

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 29, effective 10 November 2009 until Present, 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.        The Applicant contends he received an Honorable discharge that was improperl y changed after his discharge .

Decision

Date: 20 1 3 0117             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall change to COMPLETION OF REQUIRED ACTIVE SERVICE .
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 sta ndards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order, regulation ), Article ( Drunken or reckless operation of vehicle, aircraft, or vessel ), and Article ( Wrongful use, possession, etc. of controlled substances ) . The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . The administrative board, by a vote of 3-0, found that the preponderance of evidence showed that the Applicant did commit misconduct (drug abuse) but also voted 2-1 to recommend retention . The Applicant’s commanding officer concurred with the finding of misconduct but disagreed with the board’s recommendation to retain the Applicant. Commander, Fleet Logistics Support Wing agreed with the CO’s recommendation for an Under Other Than Honorable Conditions discharge. Commander, Naval Air Force Reserve determined misconduct (drug abuse) occurred and ordered the Applicant to be discharged Under Other Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends he received an Honorable discharge that was improperly changed after his discharge. Naval Military Personnel Manual (MILPERSMAN) Article 1910 -702, paragraph 3(a), states that in the case where an admi ni strative board finds that the member committed the offense that led to the reason for processing and recommends retention, but the convening authority recommends sepearation, the case shall be forwarded with written rationale to Navy Personnel Command for possible forwardi ng to the Secretary of the Navy for final action. Commander, Naval Air Force Reserve did not forward t he Applicant’s administrative separation package to Navy Personnel Command but instead directed the discharge of the Applicant Under Other Than Honorable Conditions for Misconduct (Drug Abuse). This was improper as Navy Personnel Command was the Separation Authority, not Naval Air Force Reserve, who did not have proper authority to approve findings and characterization recommendations less favorable to the respondent than those rendered by the administrative board. Since Naval Air Force Reserve did not have separation authority, the Applicant reached his Completion of Required Active Service. In accordance with MILPERSMAN Article 1910-104, a member separated upon expiration of enlistment or fulfillment of service obligation is eligible for a characterization of Honorable, unless a General is warranted on the basis of the Enlisted Performance Evaluation System. If during the current enlistment, the servicemember’s evaluation overall trait average is 2.49 or below, then it is appropriate to receive a General (Under Honorable Conditions) discharge. The Applicant’s service record reflects an overall trait average for this enlistment of 3.26. Therefore, an Honorable characterization is appropriate. The NDRB voted unanimously to upgrade the characterization of service to Honorable and change the narrative reason for separation to Completion of Required Active Service. Relief granted.

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 re ason for separation shall change to COMPLET I ON OF REQUIRED ACTIVE SERVICE.


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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