Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1300746
Original file (ND1300746.rtf) Auto-classification: Denied

ex-OSSA, USN
Current Discharge and Applicant’s Request
Application Received: 20130205
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: Remove Misconduct Narrative

Summary of Service

 Prior Service:
Inactive:         US N R (DEP)        19990126 - 19990224     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 19990225     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20000811      Highest Rank/Rate: OSSA
Length of Service : Y ear M onth s 18 D a ys
Education Level:        AFQT: 59
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP:     SCM:             SPCM:            C C : R etention Warning Counseling :

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 27, effective 27 March 2000 until 11 February 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 .


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

Applicant’s Issues

 1.       The Applicant wants an upgrade to enhance employment opportunities.
2 .        The Applicant contends his discharge was based on rumors with no positive urinalysis.
3.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date: 20 1 3 0905             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. The 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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in non-judicial punishment or court-martial. The Applicant was administratively processed for separation by his command due to M isconduct (Drug Abuse). The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy. 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 .

Issue 1: (Nondecisional) The Applicant wants an upgrade to enhance employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends his discharge was based on rumors with no positive urinalysis. The Applicant’s service and medical records contained significant documentation that the Applicant self-referred to an appropriate medical professional for help with his drug dependence. The record shows the Applicant received intensive outpatient substance abuse treatment that ended on 01 May 2000. Pursuant to OPNAVINST 5350.4D, personnel who self-refer and screen as drug dependent shall be considered valid self-referrals and are exempt from any disciplinary action. Valid self-referrals, however, shall be processed for administrative separation. The Applicant’s separation package indicates he did not receive any disciplinary action as a result of violating the Navy’s zero-tolerance drug policy. The Applicant was administratively separated and his discharge characterization was determined by his overall trait average of his evaluation marks . The NDRB was unable to verify the Applicant’s overall trait average as his evaluations were not found in the record. The government enjoys a presumption of regularity in the conduct of its affairs in the absence of substantial and credible evidence. Therefore, the NDRB determined the Applicant’s discharge was proper and equitable. Relief denied.

Issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants consideration for 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 evidence of college attendance and passing of state licensing exams. 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. T he NDRB determined the characterization of service received was appropriate considering the length of service and violation of the Navy’s drug policy. 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 | 2014_Navy | ND1400170

    Original file (ND1400170.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks to have his RE-code changed.2. 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 service and the reason for discharge if such change is warranted.In reviewing...

  • NAVY | DRB | 2015_Navy | ND1401685

    Original file (ND1401685.rtf) Auto-classification: 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received...

  • NAVY | DRB | 2013_Navy | ND1301828

    Original file (ND1301828.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of ServicePrior Service: Inactive:USNR (DEP)20090304 - 20100112Active:Pre-Service Drug Waiver: Period of Service Under Review: Date of Current Enlistment: 20100113Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20111021Highest Rank/Rate:OSSALength of Service: Year(s)Month(s)09 Day(s)Education Level:AFQT: 47EvaluationMarks:Performance:3.0(1)Behavior:3.0(1)OTA: 3.00Awards and Decorations...

  • NAVY | DRB | 2009_Navy | ND0902446

    Original file (ND0902446.rtf) Auto-classification: Denied

    Therefore, the NDRB determined an upgrade is warranted and the narrative reason for separation was appropriate.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical 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...

  • NAVY | DRB | 2010_Navy | ND1001971

    Original file (ND1001971.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of ServicePrior Service: Inactive:USNR (DEP)20081219 - 20090126Active: Period of Service Under Review: Date of Current Enlistment: 20090127Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20091211Highest Rank/Rate:ITSALength of Service: Years Months14 DaysEducation Level:AFQT: 90EvaluationMarks:Performance:2.0(1)Behavior:1.0(1)OTA: 1.67Awards and Decorations (per DD 214):NDSM GWOTSM...

  • NAVY | DRB | 2010_Navy | ND1002012

    Original file (ND1002012.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...

  • NAVY | DRB | 2012_Navy | ND1200304

    Original file (ND1200304.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of ServicePrior Service: Inactive:USNR (DEP)20071219 - 20080709Active: Period of Service Under Review: Date of Current Enlistment: 20080710Age at Enlistment:Period of Enlistment:4 YearsExtensionDate of Discharge:20100319Highest Rank/Rate:OSSNLength of Service:Year(s)Month(s) 10 Day(s)Education Level:AFQT: 41EvaluationMarks:Performance:2.5(2)Behavior:2.0(2)OTA: 2.50Awards and Decorations (per DD 214):,Periods...

  • NAVY | DRB | 2010_Navy | ND1001686

    Original file (ND1001686.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/ToCongress member: Pertinent Regulation/Law A. ” Additional Reviews : After...

  • NAVY | DRB | 2015_Navy | ND1500378

    Original file (ND1500378.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. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

  • NAVY | DRB | 2011_Navy | ND1100223

    Original file (ND1100223.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20040113 - 20041025Active: Period of Service Under Review: Date of Current Enlistment: 20041026Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20051130Highest Rank/Rate:OSSALength of Service: Year(s)Month(s)05 Day(s)Education Level:AFQT: 67EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214):Periods of...