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NAVY | DRB | 2013_Navy | ND1300393
Original file (ND1300393.rtf) Auto-classification: Denied

ex-ATAN, USN
Current Discharge and Applicant’s Request
Application Received: 20121211
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: EXPIRATION OF SERVICE OBLIGATION

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19970214 - 19970323     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 19970324     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010713      Highest Rank/Rate: AT 3
Length of Service : Y ear ( s ) M onth ( s ) 23 D a y ( s )
Education Level:        AFQT: 53
Evaluation M arks:         Performance: 3.3 ( 4 )      Behavior: 3.0 ( 4 )        OTA: 3.00

Awards and Decorations ( per DD 214):      Rifle (2) ( 2 )
Periods of UA /C ONF :

NJP:
- 20010517 :      Article (Wrongful use, possession, etc. of controlled substances , methamphetamine 1366 ng/ml )
         Awarded: Susp ended: [Date extracted from NAVPERS 1070/604, Awards; details extracted from Commanding Officer’s letter dated 20010711]

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:

          “ 2001 JUL 13 ”
         “ 04 03 23 ”
         “ GKK ”
“ MISCONDUCT ”

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 :        


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

Applicant’s Issues

 1.        The Applicant contends his legal representation at his administrative board was incompetent and criminally derelict.
2.       The Applicant contends the proceedings of his administrative board were not in compliance with regulations.
3 .        The Applicant contends his in-service conduct warrants an upgrade.
4 .       The Applicant contends his characterization is inequitable since he was on an extension.
5 .        The Applicant contends his misconduct was an isolated incident.
6 .       The Applicant contends his misconduct occurred off duty, while on liberty off base.
7 .        The Applicant contends he was intoxicated at the time of his misconduct .
8.       The Applicant contends he was only 22 years old.
9 .        The Applicant contends his post-service conduct warrants an upgrade.
Decision

Date : 20130724             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 (Wrongful use, possession, etc. of controlled substances, methamphetamine 1366 ng/ml , NAVDRUGLAB msg R302243Z APR 01 ) . The Applicant a pre-service arrest for possession of marijuana 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, submit a written statement , and request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported Misconduct ( Drug Abuse ) and recommended separation Under Other Than Honorable Conditions. The Separation Authority concurred with the board’s recommendations and ordered the Applicant to be discharged.

: (Decisional) ( ) . The Applicant contends his legal representation at his administrative board was incompetent and criminally derelict. Further, t he Applicant contends the proceedings of his administrative board were not in compliance with regulations. The record contained no evidence of any wrongdoing by the Applicant’s legal representation , administrative board, or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant’s statements do not overcome the presumption of regularity. The NDRB discerned no impropriety in the Applicant’s discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade. Based on the Applicant’s record of service, 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 of service was warranted. Relief denied.
: (Decisional) ( ) . The Applicant contends his characterization is inequitable since he was on an extension. Although the Applicant had served h is original four-year contract, characterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service plus any extensions prescribed by law or regulations or effected with the consent of the member. Relief denied.




5 : (Decisional) ( ) . The Applicant contends it was an isolated incident. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, 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. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.
6 : (Decisional) ( ) . The Applicant contends it occurred off duty and while on liberty off base. Article 2 of the UCMJ establishes jurisdiction over members of the regular components of the Armed Forces, and therefore, jurisdiction is not limited to a member’s location or duty status. The NDRB discerned no impropriety or inequity in the Applicant’s discharge. Relief denied.

7 : (Decisional) ( ) . The Applicant contends he was intoxicated at the time. Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment. Relief denied.

8 : (Decisional) ( ) . The Applicant contends he was only 22 years-old. The NDRB recognizes that many of our servicemembers are young at the time they enlist for service, however, most still manage to serve honorably. While some members may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct. Relief denied.

9 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants 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 well - documented history of h is post-service conduct . However, post-service conduct alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. The Board determined t he characterization of service received was appropriate considering the length of service and UCMJ violation. 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.

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, effective 12 February 2001 until 15 July 2001, 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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