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NAVY | DRB | 2012_Navy | ND1201088
Original file (ND1201088.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)        20031030 - 20040926     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20040927     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090202      Highest Rank/Rate: HN
Length of Service : Y ear ( s ) M onth ( s ) 06 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 3.0 ( 4 )        OTA: 2.99

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP:     SCM:              CC:

SPCM:

- 20080718 :      Article 81 (Conspiracy)
         Article (Wrongful use, possession, etc. of controlled substances - wrongful ly distribute 7 Per cocet pills )
         Sentence: 100 days (20080731-20081011, 73 days)

Retention Warning Counseling:

- 20060809 :      For failure to meet body composition assessment standards

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:        



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

Applicant’s Issues

 1.       The Applicant wants his discharge upgraded so he can better support himself and his family by continuing his education and gaining a respectable career.
 2 .       The Applicant contends his discharge was inequitable , because he was guaranteed a G eneral discharge if he waived his administrative separation board. He also c ontends his CO recommended he receive a G eneral discharge.
3 .       The A pplicant contends his record of service, as evidenced by his recommendations for Early Promotion and other letters of recommendation, warrants consideration for upgrading his discharge.
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. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and S pecial C ourt- M artial conviction for o f the Uniform Code of Military Justice (UCMJ): Article 81 ( Conspiracy, 1 specification) and A rticle ( Wrongful use, possession, etc. of controlled substance - wrongful distribution of seven Percocet pills) . 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.

: (Non - decisional) The Applicant wants his discharge upgraded so he can better support himself and his family by continuing his education and gaining a respectable career . The NDRB acknowledges the Applicant’s desire to provide a better life for his family. However, this issue does not serve to provide a foundation upon which the Board can grant relief. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing an Applicant’s employment and education opportunities . Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because he was guaranteed a G eneral discharge if he waived his administrative separation board . He also c ontends his CO recommended he receive a G eneral discharge. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that he was guaranteed a G eneral discharge if he waived the administrative board. A review of the records shows the Applicant was notified of administrative separation processing for Misconduct (Drug Abuse) and Misconduct (Serious Offense) and was informed in this notification that the least favorable characterization of service was Under Other Than Honorable Conditions. There is also a request from the Applicant’s defense counsel to the administrative separation board convening authority (Commanding Officer, Navy Region Southwest Transient Personnel Unit) asking for him to recommend a General discharge to the Separation Authority (Commander, Navy Personnel Command) , who was solely responsible for determining the Applicant’s discharge characterization of service. In this request, the Applicant’s defense counsel states, “defense counsel and [Applicant] understand that the recommendation of the convening authority is not binding on the Separation Authority, and that the Separation Authority has the final say in the characterization of discharge.” The CO of NRSW TPU did recommend to the Separation Authority that the Applicant receive a General characterization of service, however, the Separation Authority, after reviewing the facts and circumstances of this case, ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse). The NDRB did not find any promise of a General characterization made to the Applicant, because the CO of the TPU did not have the authority to make that promise. The NDRB determined that relief based on this issue is not warranted. Relief denied.
: (Decisional) ( ) . The A pplicant contends his record of service, as evidenced by his recommendations for Early Promotion and other letters of recommendation, warrants consideration for upgrading his discharge . Despite a member’s record of service, certain serious offenses warrant separation from the Nav y to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of performance, grade, promotion recommendations, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. In this case, the Applicant’s misconduct was adjudicated at a S pecial- C ourt M artial. He was sentenced to a punitiv e discharge (Bad Conduct), which was suspended. His command then properly processed him for administrative separation, and the proper Separation Authority equitably ordered his discharge Under Other Than Honorable Conditions. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord entries, 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.

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 .


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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