Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1201368
Original file (ND1201368.rtf) Auto-classification: Denied

ex-BUCA, USN
Current Discharge and Applicant’s Request
Application Received: 20120606
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)        20080610 - 20080714     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20080715     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20111202      Highest Rank/Rate: BUCN
Length of Service: Y ear( s ) M onth( s ) 18 D a y ( s )
 Education Level:        AFQT: 41
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 3.7 ( 3 )        OTA: 3.50

Awards and Decorations ( per DD 214):      Rifle ACM (2) SCWS NATO

Periods of UA /C ONF :

NJP :

- 20090826 :      Article (Failure to obey order or regulation)
         Article (General A rticle , u nderage drinking)
         Awarded: Suspended:

- 20111104 :      Article (Failure to obey order or regulation , wrongfully using or possessing S pice )
         Article (False official statements , to wit: I have not smoked S pice )
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20090827 :       For violation of UCMJ Article 92.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
         “ BUCA ”
         “ E2 ”
         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, AFGHANISTAN CAMPAIGN MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2), NATO MEDAL, NAVY RIFLE SHARPSHOOTER MEDAL , SEABEE COMBAT WARFARE SPECIALIST, ARMY ACHIEVEMENT MEDAL ”

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:                  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 36, effective 18 August 2011 until Present, 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 seeks an upgrade so that his future children will never have to question his character of service. He also wants to take advantage of the GI Bill.
 2.       The Applicant contends his state of mind due to the death of his son contributed to his misconduct .
3.       The Applicant contends his treatment for depression, insomnia, and grief with medication altered his state of mind.
4.       The Applicant contends he did not smoke S pice and was only guilty of not reporting others.
5.       The Applicant contends his in-service conduct warrants an upgrade.

Decision

Date : 20 1 3 0403             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 Applicant’s record of service included NAV PERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation, 2 specifications), Article (False official statements, to wit: I have not smoked S pice), and Article (General A rticle, underage drinking). The Applicant did not have a pre-service drug waiver for using illicit drugs prior to entering the Navy. Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the drug policy violation, processing for administ rative separation is mandatory. 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 a Ge neral Court-Mar tial Convening Authority review .

: (Nondecisional) The Applicant seeks an upgrade so that his future children will never have to question his character of service. He also wants to take advantage of the GI Bill. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on an Applicant’s future children questioning their father’s character of service. Also, t he 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.
: (Decisional) ( ) . The Applicant contends his state of mind due to the death of his son contributed to his misconduct. Although the loss of a n infant son is tragic, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the Naval Service . The NDRB concluded that relief based on this issue was not warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his treatment for depression, insomnia, and grief with medication altered his state of mind. 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 , diagnosis , or treatment to be of sufficient nature to excuse the Applicant’s misconduct. Relief denied.

4 : (Decisional) ( ) . The Applicant contends he did not smoke S pice and was only guilty of not reporting others. The Applicant was found guilty of violating UCMJ Article 107 at NJP for lying about the use of Spice. The Applicant submitted no evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.



5 : (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Sailors who are found guilty of using Spice typically receive an Under Other Than Honorable Conditions characterization of service. The NDRB determined his command considered his service and personal problems when assigning him the more lenient General characterization. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was 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 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 | 2011_Navy | ND1101434

    Original file (ND1101434.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant contends Spice was not illegal to be sold in retail at the time of his discharge. 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,...

  • USMC | DRB | 2013_Marine | MD1301313

    Original file (MD1301313.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • USMC | DRB | 2011_Marine | MD1100933

    Original file (MD1100933.rtf) Auto-classification: Denied

    The Applicant wants his discharge upgraded so he can reenlist in the military.2. ” 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. 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...

  • USMC | DRB | 2013_Marine | MD1300567

    Original file (MD1300567.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. As described in Issue 2, the record clearly shows the Applicant wrongfully used and possessed Spice, which is a violation of the Marine Corps drug policy and warrants mandatory administrative separation processing. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is...

  • NAVY | DRB | 2013_Navy | ND1301637

    Original file (ND1301637.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...

  • NAVY | DRB | 2011_Navy | ND1102033

    Original file (ND1102033.rtf) Auto-classification: Denied

    The Applicant wants his discharge upgraded so he can reenlist in the military. : (Non-decisional) The Applicant wants his discharge upgraded so he can reenlist in the military.The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. ” 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...

  • NAVY | DRB | 2013_Navy | ND1301238

    Original file (ND1301238.rtf) Auto-classification: Denied

    The Applicant a pre-service drug waiver for using drugs prior to entering the Navy.Based on the Article 112a violation, processing for administrative separation is mandatory.When notified of administrative separation processing for Misconduct (Serious Offense), Misconduct (Drug Abuse), and Physical Fitness Assessment Failure using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. ” Additional Reviews :...

  • USMC | DRB | 2012_Marine | MD1200669

    Original file (MD1200669.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...

  • USMC | DRB | 2013_Marine | MD1300077

    Original file (MD1300077.rtf) Auto-classification: Denied

    The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 26 June 2008.Based on the drug policy violation, processing for administrative separation is mandatory.The Applicant signed a pre-trial agreement to plead guilty at non-judicial punishment or Summary Court-Martial for the Article 92 violations, provided the Convening Authority withdraw the charges and...

  • NAVY | DRB | 2010_Navy | ND1002269

    Original file (ND1002269.rtf) Auto-classification: Denied

    The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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...