Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1300158

Original file (ND1300158.rtf) Auto-classification: Denied

ex-MSSA, USN

Current Discharge and Applicant’s Request

Application Received: 20121101

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)        20000310 - 20000314     Active:

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20000315     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020926      Highest Rank/Rate: MSSN
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 47
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 1.5 ( 2 )        OTA: 2.68

Awards and Decorations ( per DD 214):

Periods of UA : 20020822 - 20020905, 14 days; 20020918 - 20020919, 1 day / C ONF :

NJP:

- 20020701 :      Art icle (Failure to obey order or regulation, to wit: SNM having knowledge of a lawful order issued by OS2 ______, Legal Clerk, to immediately report back to Naval Support Activity, Norfolk, Legal Office, Building NH-140 , after seeking legal advice from an attorney at Naval Legal Service Office, Defense Department, an order which it was her duty to obey, did on active duty, on or about 20020610, fail to obey the same by not returning to the Legal Office)
         Article (Wrongful use, possession, etc. of controlled substances , 2 specifications )
         Specification 1: On or about 20020524, wrongfully use cocaine 219 ng/ml
         Specification 2: On or about 20020615, wrongfully use cocaine
         Awarded: Susp ended:

SCM:     SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 02 05 27 ”
        “ ”
         “ 02AUG22 TO 02SEP05, 02SEP1 8 ”

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 22 August 2002 until 28 April 2005, 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 she never knowingly used any illegal drug .
2.       The Applicant contends h er post-service conduct is worthy of an upgrade .

Decision

Date : 20 1 3 0724    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 for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation, failed to immediately report back to Naval Support Activity ) and Article (Wrongful use, possession, etc. of controlled substances , 2 specifications : Specification 1: On or about 20020524, wrongfully use cocaine , 219 ng/ml , NAVDRUGLAB msg R041614Z JUN 02 and Specification 2: On or about 20020615, wrongfully use cocaine ). The Applicant a pre-service drug waiver for using marijuana 20 times 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 and request an administrative board , but waived her r ight to submit a written statement. The administrative board voted 3-0 that the preponderance of the evidence supported that she had committed Misconduct (Drug Abuse) and recommend ed separation Under Other Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends she never knowingly used any illegal drug. The Applicant contends she has always been drug free , and her drink was spiked with cocaine. The service record clearly shows the Applicant had a pre-service drug waiver for using marijuana 20 times prior to entering the Navy . After being found guilty at Captain’s Mast of two specifications of cocaine use, she elected to appear before an administrative separation board, which determined that the preponderance of the evidence supported that she had committed Misconduct (Drug Abuse). The Applicant submitted no evidence to support h er contention that she never knowingly used an illegal drug. The NDRB determined her discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends her post-service conduct is worthy of an upgrade. 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 provided a personal statement and two character references. 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. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. 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

Similar Decisions

NAVY | DRB | 2012_Navy | ND1200222

Original file (ND1200222.rtf) Auto-classification: Denied

Types of Documents Submitted/reviewedRelated 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 NAVYNAVAL DISCHARGE REVIEW BOARD...
USMC | DRB | 2012_Marine | MD1201580

Original file (MD1201580.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief 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 the discharge was proper and equitable at the time of discharge. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing,...
USMC | DRB | 2009_Marine | MD0901509

Original file (MD0901509.rtf) Auto-classification: Denied

Summary: After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found clemency was not warranted and the sentence awarded the Applicant at his court-martial was appropriate for the offenseshe committed.Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain.The Applicant remains eligible for a personal...
NAVY | DRB | 2009_Navy | ND0900146

Original file (ND0900146.rtf) Auto-classification: Denied

The Applicant was unable during any of these proceedings to convince either his CO or the ASB he either didn’t knowingly use cocaine or the lab test was in error. Especially found credible was the testimony of Mr. S. that the Applicant could have taken cocaine on the Friday or Saturday preceding the urinalysis and still tested positive at the levels indicated in the drug test administered on 14 November 2006. The NDRB determined the awarded discharge characterization was appropriate and an...
NAVY | DRB | 2015_Navy | ND1401633

Original file (ND1401633.rtf) Auto-classification: Denied

” 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. 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. Additionally, the NDRB has no authority to upgrade a...
NAVY | DRB | 2008_Navy | ND0801220

Original file (ND0801220.rtf) Auto-classification: Denied

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that 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...
USMC | DRB | 2015_Marine | MD1500776

Original file (MD1500776.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Illegal drug use in the Marine Corps requires mandatory processing for administrative separation. ” 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.
NAVY | DRB | 2011_Navy | ND1100889

Original file (ND1100889.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade for educational opportunities.2.The Applicant contends that he did not knowingly ingest cocaine.3. 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...
NAVY | DRB | 2012_Navy | ND1201556

Original file (ND1201556.rtf) Auto-classification: Denied

Applicant’s Request:Characterization change to: Narrative Reason change to: Secretarial, or as appropriate Summary of Service Prior Service: Inactive:USNR1990810 - 19901031Active:R 19901101- 19920107 HONR 19920108 - 19950817 HONPre-Service Drug Waiver: Period of Service Under Review: Date of Current Enlistment: 19950818Age at Enlistment: Period of Enlistment: YearsExtensionDate of Discharge:19981014Highest Rank/Rate: YN2Length of Service: Year(s)Month(s)26 Day(s)Education Level:+AFQT:...
NAVY | DRB | 2015_Navy | ND1500560

Original file (ND1500560.rtf) Auto-classification: Denied

The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, and for of the Uniform Code of Military Justice (UCMJ): Article (Larceny), and Article (Wrongful use, possession, etc., of controlled substances; cocaine). ” 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...

Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1300158

Similar Decisions