Decket No. ND13-01191

 

, ex-FN, USN
CURRENT DISCHARGE AND APPLICANT’S REQUEST
Application Received: 20130530
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT (DRUG ABUSE)
Authority for Discharge: (per DD 214) MILPERSMAN 1910-146 [DRUG ABUSE]

Applicant’s Request: Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE

Prior Service:
Inactive: USNR (DEP) 20110302 - 20110809 CoG Active: NONE

Pre-Service Drug Waiver: NO

Period of Service Under Review:

Date of Current Enlistment: 20110810 Age at Enlistment: 20

Period of Enlistment: 4 Years NO Extension

Date of Discharge: 20130204 Highest Rank/Rate: FN
Length of Service: 01 Year(s) 05 Month(s) 26 Day(s)

Education Level: 13 AFQT: 54

Evaluation Marks: Performance: 3.5 (2) _ Behavior: 3.0 (2) OTA: 3.25

Awards and Decorations (per DD 214): Pistol MM GWOTSM MUC NDSM NAVY up"

Periods of UA: 20121127 - 20121205, 9 days

Periods of CONF: NONE

NIP: NONE SCM: NONE SPCM: NONE CC: NONE Retention Warning Counseling. NONE
TYPES OF DOCUMENTS SUBMITTED/REVIEWED

Related to Military Service:

DD 214: XI Service/Medical Record: Other Records: |
Related to Post-Service Period:
Employment: C] Finances: C] Education/Training: C1
Health/Medical Records: Z| Rehabilitation/Treatment: 0 Criminal Records: C]
Personal Documentation: [7] Community Service: TJ References: Py
Department of VA letter: [J Other Documentation: (]
Additional Statements:
From Applicant: CO From/To Representation: {_] From/To Congress member: XX

PERTINENT REGULATION/LAW

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, 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 HI, Para 211, Regularity of Government Affairs, Part V, Para 502, P: topricty and Para $03, Equity.

Key: NFIR - Not found in record RESTR - Restriction NIP - Nonjudicial punishment SCM - Summary court-martial
SPCM - Special court-martial FOP - Forfeiture of pay RIR - Reduction in rank EPD - Extra duties
CONF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW ~- Confinement on bread and water
. . . Docket Ne. ND13-01191
DEPARTMENT OF THE NAVY

NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

APPLICANT'S ISSUES

The Applicant seeks an upgrade to receive service benefits.

The Applicant seeks an upgrade to enhance employment opportunities.

The Applicant contends he became depressed and suicidal when denied a new job and new orders and made the decision to
get out of the Navy to provide stability for his wife and newbom child.

wher

DECISION
Date: 26131114 DOCUMENTARY REVIEW Location: WASHINGTON D.C. Representation: NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (DRUG ABUSE).

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 governmental 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 his
discharge and the discharge process to ensure his 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 nonjudicial
punishment or court-martial. Upon returning from a period of unauthorized absence, the Applicant tested positive for THC.
Based on the violation of the Navy’s zero-tolerance drug policy, processing for administrative separation is mandatory. When
notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to
consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1: (Nondecisional) The Applicant seeks an upgrade to receive 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.

Issue 2: (Nondecisional) The Applicant seeks an upgrade to enhance employment 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 proptiety and equity of the discharge.

Issue 3: (Decisional) (Propriety/Equity) RELIEF NOT WARRANT. ED. The Applicant contends he became depressed and
suicidal when denied a new job and new orders and made the decision to get out of the Navy to provide stability for his wife
and newborn child. it is not standard for an E-3 going into E-4 to receive new orders and pursue a suitable job as the Applicant
contends. Even if he was denied a promised position, it does not excuse his wrongful use of a controlled substance. 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. Even after reviewing the Applicant’s
medical and service records, the NDRB determined the Applicant’s personal and professional challenges were not mitigating
factors in his misconduct. Violation of the Navy’s zeto-tolerance drug policy 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 patt of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but opted
instead for the more lenient administrative discharge. The NDRB determined his discharge was warranted, proper, and
equitable. Relief denied.
=

- Docket No. ND13-01191
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record
entries and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization
of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall

remain MISCONDUCT (DRUG ABUSE). The Applicant remains eligible for a personal appearance hearing for a period of
fifteen years from the date of his discharge. The Applicant is directed to the Addendum for additional information.
Docket No, ND13-01191

i ge
ADDENDUM: Information for the Applicant

Complaint Procedures: \f 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 “httpv/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. Ifa 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 ne 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.

Reentistment/RE-cede: 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 reguiations-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 prant 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 ot 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
Att Naval Discharge Review Board

720 Kennon Street SE Rm 309

‘Washington Navy Yard DC 20374-5023