Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1201080
Original file (ND1201080.rtf) Auto-classification: Denied

ex-HR, USN
Current Discharge and Applicant’s Request
Application Received: 20120413
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)        20070622 - 20070805     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20070806     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090505      Highest Rank/Rate: HN
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 44
Evaluation M arks:         Performance: 2.0 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.24

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP:

- 20090127 :      Article (Absence without leave)
         Article (False official statements , 4 specifications )
         Article (Wrongful use, possession, etc. of controlled substances , to wit: marijuana , 2 specifications )
         Awarded: Suspended:

- 20090316 :      Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: Suspended:

SCM:     SPCM:    C C :

Retention Warning Counseling:

- 20070907 :      For inappropriate behavior and unprofessional conduct, to wit: wrongfully using racially explicit language toward another recruit while in a trainee status and difficulty passing your swimming qualification.

- 20071018 :       For failure to adapt and conform to Navy standards, lack of respect for senior authority, disrespect and lying to your Recruit Division Commanders and Ship’s LCPO, failure to follow instructions from your Recruit Division Commanders, failure to obey the rules and regulations at Recruit Training Command, overall lack of military bearing, motivation , and attention to detail, and substandard performance.







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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 2 June 2008 until 9 November 2009,
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 seeks an upgrade to qualify for medical benefits.
2.       The Applicant contends a medical discharge is more appropriate due to his in - service injuries , and his misconduct was the result of self-medication for his injur i es.
Decision

Date: 20 1 3 0213             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 and for o f the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave, 1 specification), Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , ), Article ( False official statement, 1 specification), and Article ( Wrongful use, possession, etc. of controlled substances , ). Based on the Article 112a violation, processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review . However, the Applicant’s S eparation C ode of HKK on his DD Form 214 indicates he waived his right to an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to qualify for medical 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 a medical discharge is more appropriate due to his in - service injuries , and his misconduct was the result of self-medication for his injur i es. Per regulations, the initiation and submission of medical boards are at the discretion of the individual physician. There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board by proper authority. Further, the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant. Department of Defense disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. During the Applicant’s one year and nine months of service, he received two retention warnings and was found guilty of multiple UCMJ violations at two NJPs. As a result, he met the requirements for administrative separation due to Misconduct (Serious Offense), Misconduct (Pattern of Misconduct), and Misconduct (Drug Abuse). Also, when reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. However, the NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct. The NDRB determined his injuries did not mitigate or excuse his misconduct and further determined his discharge was warranted and was proper and equitable. 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

Similar Decisions

  • NAVY | DRB | 2015_Navy | ND1401515

    Original file (ND1401515.rtf) Auto-classification: Denied

    Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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 entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain and the narrative...

  • NAVY | DRB | 2010_Navy | ND1000726

    Original file (ND1000726.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant desires to reenlist in the military.2. 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...

  • NAVY | DRB | 2009_Navy | ND0901797

    Original file (ND0901797.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Wants to reenlist in the Navy Reserve. On 30 April 2007, the Applicant’s command also notified him of two other reasons for administrative separation processing: Pattern of Misconduct and 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...

  • NAVY | DRB | 2010_Navy | ND1001809

    Original file (ND1001809.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain General (Under Honorable Conditions).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 | 2012_Navy | ND1201376

    Original file (ND1201376.rtf) Auto-classification: Denied

    With an NJP for violation of UCMJ Articles 121 and 123a during her enlistment, the Applicant met the requirements for administrative separation processing for Misconduct (Serious Offense) and was equitably assigned a General (Under Honorable Conditions) characterization of service.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...

  • NAVY | DRB | 2011_Navy | ND1101295

    Original file (ND1101295.rtf) Auto-classification: Denied

    : (Non-decisional) The Applicant wants his discharge upgraded so he can reenlist in the military. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.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 the narrative reason for separation shall remain .The Applicant...

  • USMC | DRB | 2009_Marine | MD0901386

    Original file (MD0901386.rtf) Auto-classification: Denied

    By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. The Applicant's service record did not contain any unusual circumstances during his less than 6 months in the military to warrant a change of discharge to honorable.The NDRB advises the Applicant that, with respect to non-service related administrative matters, i.e. Department of Veterans...

  • NAVY | DRB | 2010_Navy | ND1000796

    Original file (ND1000796.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 administrative separation process, and the lack of credible evidence to show otherwise, the Board presumed regularity and found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remainENTRY LEVEL...

  • NAVY | DRB | 2015_Navy | ND1500031

    Original file (ND1500031.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall .By a vote of the Reenlistment Code 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. 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...

  • NAVY | DRB | 2013_Navy | ND1301360

    Original file (ND1301360.rtf) Auto-classification: Denied

    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 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 members are...