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NAVY | DRB | 2013_Navy | ND1300444
Original file (ND1300444.rtf) Auto-classification: Denied

ex-IT3, USN
Current Discharge and Applicant’s Request
Application Received: 20130717
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: TO ATTEND SCHOOL

Summary of Service

 Prior Service:
Inactive:         US N R (DEP)        20010518 - 20010826     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 200 1 0827     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050809      Highest Rank/Rate: IT2
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 2.7 ( 6 )      Behavior: 2.3 ( 6 )        OTA: 2.49

Awards and Decorations ( per DD 214):      FL o C L o C (4) NMCOSR (2)

Periods of UA : (20041126 to 20041130 , 4 day s ; 20050524 to 20050726 , 64 days)

NJP:

- 20041205 :      Article ( Absence without leave )
         Article (Missing movement)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

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:

         “ ”
         “ 04NOV26 TO 04NOV30; 05MAY24 TO 05JUL26 ”

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 11, effective 29 April 2005 until 1 June 2008, 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 he never received the DD Form 214 that is in his O fficial Military Personnel File (O MPF ), which is in violation of 10 U.S.C 1168.
2.       The Applicant contends the DD Form 214 in his OMPF was t ampered with , which is in violation of DOD Instruction 1336.01 .
3 .       The Applicant contends his in-service conduct warrants an upgrade.
4 .       The Applicant contends he is innocent.
5 .       The Applicant contends he was subjected to an illegal search and seizure .
6 .       The Applicant contends that if he was truly awarded an Under Other Than Honorable Conditions characterization, he would not have been entitled to retain his uniforms or receive transportation to his home of record.
7 .       The Applicant contends his post -service conduct warrants an upgrade.

Decision

Date : 20 1 3 0829             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 (Absence without leave) , Article (Missing movement) , and Article (Failure to obey order or regulation) . The service record also shows the Applicant engaged in drug abuse a nd then remained absent without leave for 64 days until apprehended by civil authorities. The Applicant a pre-service drug waiver for using illicit drugs 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 Applicant was notified of separation proceedings for Commission of a Serious Offense and Drug Abuse.

: (Decisional) ( ) . The Applicant contends he never received the DD Form 214 that is in his OMPF , which is i n violation of 10 U.S.C 1168 , and it was tampered with , which is in violation of DODI 1336.01 . The Applicant specifically contends that someone forged his signature , and he was not provide d a copy of the forged DD Form 214 . The Applicant provides exhibits that show his previous signatures and initials on other service record documents. The Applicant contends t hese exhibits prove the DD Form 214 in his OMPF was forged. The NDRB concurs with the Applicant’s allegation that the signature on the 9 August 2005 DD Form 214 does not match previous signatures in his service record. However, there appears to be several inconsistencies with the DD Form 214 provided by the Applicant. One inconsistency is that the RE-4 Reentry Code (Not eligible for re-enlistment) is at odds with the discharge characterization of Honorable and a Narrative Reason for Separation of To Attend School . More importantly, the DD Form 214 provided by the Applicant shows that he was on active duty only until 25 May 2005. The service record clearly shows the Applicant was in an unauthorized absence status from 24 May 2005 to 26 July 2005. In fact, the Applicant signed his administrative separation notification on 27 July 2005 , clearly demonstrating he was still on active duty after the DD Form 214 he provided stated that he had been honorably discharged. Although it is not clear as to how or why the 25 May 2005 DD Form 214 was generated, the NDRB determined that it was superseded by the 9 August 2005 version, which is the correct and only version found in his service record. Further evidence that the 9 August 2005 version is the only and correct version is that the Applicant had significant misconduct that warranted an Under Other Than Honorable Conditions characterization for Misconduct (Drug Abuse). Relief denied.



: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade. Based on the Applicant’s record of service, which included an NJP, an extended period of unauthorized absence, and drug abuse, 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.

4 : (Decisional) ( ) . The Applicant contends he is innocent. T he NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption . The Applicant submitted a medical record dated 24 January 2005 stating he was being treated for a right shoulder injury with Tylenol #3, Motrin, and Vicodin. The Applicant states the command found prescribed pain medication and in retrospect the bottle was not clearly labeled due to it being worn. The Applicant further states that he was not allowed to produce or retrieve a valid prescription before being accused of possession of a controlled substance. The record of evidence clearly shows the Applicant waived his rights to an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a n administrative separation board, he would have had the opportunity to mount a defense against the charges. The evidence submitted by the Applicant does not refute the presumption of regularity in the conduct of Government affairs. Relief denied.
5 : (Decisional) ( ) . The Applicant contends he was subjected to an illegal search and seizure . The record contained no evidence of any wrongdoing by the Applicant’s commanding officer 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 NDRB determined the Applicant’s discharge was proper and equitable. Relief denied.

6 : (Decisional) ( ) . The Applicant contends that if he was truly awarded an Under Other Than Honorable Conditions characterization, he would not have been entitled to retain his uniforms or receive transportation to his home of record. Per the Joint Federal Travel Regulations, commands may authorize family members a household goods shipment even if the servicemember received an Other Than Honorable Conditions discharge. If the Applicant was allowed to retain his uniforms , it was an oversight by his command. However, this oversight would not lead to a justification or evidence that the Applicant did not warrant an Under Other Than Honorable Conditions characterization . 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 wa s warranted. Relief denied.

7 : (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 his 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 s . 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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