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NAVY | DRB | 2013_Navy | ND1300391
Original file (ND1300391.rtf) Auto-classification: Denied

ex-MASN, USN
Current Discharge and Applicant’s Request
Application Received: 20121214
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)        20060927 - 20070830     Active:            20070831 - 20110227

Period of Service Under Review:
Date of Current Enlistment: 20110228     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120203      Highest Rank/Rate: MA3
Length of Service: Y ear s M onth s 07 D a ys
Education Level:        AFQT: 80
Evaluation M arks:         Performance: 2.5 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.57

Awards and Decorations ( per DD 214):      Rifle Pistol (3)

Periods of UA /C ONF :

NJP :

- 20111018 :      Article (Failure to obey order or regulation , 2 specifications )
         Awarded: Suspended:

S CM :   SPCM:    Retention Warning Counseling :

C C :

- Date Not Found in Record :       Offense: Vehicular hit and run, causing bodily injury by negligent driving of a motor                              vehicle
                                    Sentence : fine in the amount of 200,000 Yen, equivalent to approximately                                  $2600.00 [ Extracted from Commanding Officer’s letter dated 20120104]

Administrative Corrections to the Applicant’s DD 214

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

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NAVY AND MARINE CORPS ACHIEVEMENT MEDAL; NATIONAL DEFENSE SERVICE MEDAL; GLOBAL WAR ON TERRORISM SERVICE MEDAL ; NAVY GOOD CONDUCT MEDAL; SEA SERVICE DEPLOYMENT RIBBON; MERITORIOUS UNIT COMMENDATION ; NAVY/MARINE CORPS OVERSEAS SERVICE RIBBON (3); GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL ; NAVY EXPERT PISTOL SHOT MEDAL; NAVY EXPERT RIFLE MEDAL ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 070831 UNTIL 110227 ”

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 92.



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

Applicant’s Issues

 1.        The Applicant contends personal problems stemming from his grandfather’s death contributed to his Spice use.
2.       The Applicant contends he did n o t know Spice was a prohibited substance at the time of his use.
3.       The Applicant contends his discharge is inequitable based on his in-service conduct.
4.       The Applicant contends he was not provided treatment for substance abuse prior to separation.
5.       The Applicant contends he was not provided adequate military-to-civilian transition training prior to his separation.

Decision

Date: 20 1 3 0 8 29             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 for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 ( Failure to obey order o r regulation, 2 specifications) and one civilian conviction for vehicular hit and run, causing bodily injury by negligent driving of a motor vehicle. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised his right to consult with a qualified counsel, but waived rights to submit a written statement and request a n administrative board .

: (Decisional) ( ) . The Applicant contends personal problems stemming from his grandfather’s death contributed to his Spice use. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable or General discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment s , such as the Navy Chaplain, Medical or Mental Health professionals, or Family Advocacy Programs . The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct. Relief denied.
: (Decisional) ( ) . The Applicant contends he did n o t know Spice was a prohibited substance at the time of his use. Whether or not Spice was a legal substance when the Applicant used or possessed it, smoking or possessing it with the intention of getting high is a violation of SECNAVINST 5300.28D (Military Substance Abuse Prevention and Control) and is punishable under the Uniform Code of Military Justice for violation of Article 92 (Failure to obey order or regulation) and requires, at a minimum, mandatory processing for administrative separation. Relief denied.
: (Decisional) ( ) . The Applicant contends his discharge is inequitable based on his in-service conduct. The Applicant stated that he was an exemplary Sailor and had never been in any trouble in 4 ½ years of service prior to August 2011. The Applicant received an Honorable discharge for his first enlistment from August 2007 to February 2011. E ach period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, the A pplicant was found guilty of violating UCMJ Article 92. Additionally, the Applicant was convicted by a civilian court of vehicular hit and run, causing bodily injury by negligent driving of a motor vehicle . Based on the Applicant’s record of service in his second enlistment, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization was warranted . Relief denied.

4: (Decisional) ( ) . The Applicant contends he was no t provided treatment for substance abuse prior to separation. Regulations require members who have an ongoing history of alcohol or substance abuse to be medically screened for an alcohol or substance abuse problem. If diagnosed as dependent by competent medical authority, which does not include the commanding officer, appropriate treatment must be offered prior to separation. The purpose of this treatment is not to rehabilitate a service member for further service but rather to provide treatment before separation. The NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Th e record does not contain , nor has the Applicant provided , any evidence that indicates the Applicant was diagnosed with alcohol or substance dependen cy and was then denied treatment . Even if screening did not occur prior to separation, this does not change the propriety or equity of the discharge. Relief denied.

5: (Decisional) ( ) . The Applicant contends he was not provided adequate military-to-civilian transition training prior to his separation. This issue has no bearing on the propriety or equity of the Applicant’s discharge. Furthermore, t he Applicant signed DD Form 2648 on 25 January 201 2, in which he acknowledged that he received pre-separation counseling and that he understood the transition benefits and services available to assist him in his transition as required by Title 10, U.S.C., Chapter 58, Section 1142. 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

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