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Docket No. ND13-01195
TT ne OCKEE No. NDI3-O1195

ex-AR, USN
CURRENT DISCHARGE AND APPLICANT’S REQUEST
Application Received: 20130522
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (corrected) MISCONDUCT
Authority for Discharge: (corrected) MILPERSMAN 1910-146 [DRUG ABUSE]

Applicant’s Request: Characterization change to: HONORABLE
Narrative Reason change to: NONE REQUESTED

SUMMARY OF SERVICE

Prior Service: .
Inactive: USNR (DEP) 20011218 - 20020716 COG Active: NONE

Pre-Service Drug Waiver: NFIR

Period of Service Under Review:

Date of Current Enlistment: 20020717 Age at Enlistment: 18

Period of Enlistment: 4 Years 12 MONTHS Extension

Date of Discharge: 20040709 Highest Rank/Rate: AN

Length of Service: 01 Year(s) 11 Month(s) 23 Day(s)

Education Level: 12 AFOT: 35

Evaluation Marks: Performance: NFIR. ’ Behavior: NFIR OTA: NFIR

Awards and Decorations (per DD 214): NUC SSDR
Periods of UA/CONF: NONE
NIP: 3

- 20040209: Article 92 (Failure to obey order or regulation)
Awarded: FOP EPD Suspended: FOP

- 26040415: Article 92 (Failure to obey order or regulation)
Article 134 (Self-injury without intent to avoid service)
Awarded: FOP EPD Suspended: RIR FOP
- 20040527: Article Liza (Wrongful use, possession, etc. of controlled substances, cocaine and 120 ng/ml of ©
marijuana)
Awarded: FOP RIR RESTR Suspended: NONE
SCM: NONE SPCM: NONE CC: NONE
Retention Warning Counseling: 2

- 20040415: For Article 92 (Orders Regulation) and Article 134 (Self injury without intent to avoid service)

- 20040209: For Article 92 (Failure to obey an order or regulation)

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 - Civitian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
" Docket No. ND13-01195
TT DOCKet No. ND13-01195

ADMINISTRATIVE CORRECTIONS TO THE APPLICANT’S DD 214
The NDRB did note administrative error(s) on the original DD Form 214:
Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
Block 25, Separation Authority, should read: “MILPERSMAN 1910-146”
Block 28, Narrative Reason for Separation, should read: “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: Ky Service/Medical Record: 6] Other Records: CI
Related te Post-Service Period:

Employment: C) Finances: OJ Education/Training: CJ

Health/Medical Records: [] Rehabilitation/Treatment: [_} Criminal Records: Tj

Personal Documentation: [[] Community Service: {] References: Cy

Department of VA letter: {[] Other Documentation: [/] :

Additional Statements:

oO From/To Representation: [(] From/To Congress member: Cl

From Applicant:
PERTINENT REGULATION/LAW

A. The Naval Military Personnel Manual, (NAVPERS 13560C), Change 33, effective 22 August 2002 until 28 April 2005, Articie
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.

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
COMF - Confinement CC - Civilian conviction CCU - Correctional Custody Unit CBW - Confinement on bread and water
4

’ Docket No. ND13-01195
ee Docket No, NDIS-01195

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

 

APPLICANT’S ISSUES

1. The Applicant seeks an upgrade to enhance employment and educational opportunities.
2. The Applicant contends youth and immaturity were contributing factors in his misconduct.
3. The Applicant contends his post-service conduct warrants consideration for an upgrade.

DECISION
Date: 20131114 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.

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 two NAVPERS 1070/613 (Page 13) wamings and three nonjudicial punishments (NIPs)
for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 2
specifications), Article 112a (Wrongful use, possession, etc. of controlied substances, 1 specification), and Article 134 (General
Article, self-injury without intent to avoid service, 1 Specification). Based on the Article 1 12a violation, ptocessing for
administrative separation is mandatory. When notified of administrative separation processing for Misconduct (Serious
Offense), Misconduct (Drug Abuse), and Misconduct (Pattern of Misconduct) 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 enhance employment and 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.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends youth and immaturity were
contributing factors in his misconduct. 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.

issue 3: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his post-service conduct warrants
consideration for an upgrade.’ The NDRB is authorized to consider post-service factors in the re-characterization ofa
discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely
on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a
procedural impropriety or inequity must have been found to exist during the period of enlistment in question. Besides the
Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service
consideration. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the
Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge
as each discharge is reviewed by the Board ona case by case basis to determine if post-service conduct establishes that the in-
service misconduct was an aberration. Without post-service documentary evidence, the Board determined the awarded
characterization of service shalf remain Under Other Than Honorable Conditions. Relief denied.
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: ‘ , Docket No. ND13-01195
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ADDENDUM: Information for the Applicant

 

Complaint Procedures: Uf 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 re to this discharge. Representation at a personal appearance hearing is

years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunitics 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 2 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 dees not have the authority to change a narrative reason for separation to one indicating 2 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-invelvement with civil authorities; evidence of financial stability or letters of goad 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 puarantee 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