Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1301550

Original file (ND1301550.rtf) Auto-classification: Denied

ex-AT2, USN

Current Discharge and Applicant’s Request

Application Received: 20130731

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19921215 - 19921220     Active: 19921221 - 19961219 HON
                                    USN 19961220 - 20001014 HON
                                    USN 20001015 - 20041005 HON

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20041006     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061013      Highest Rank/Rate: AT1
Length of Service : Y ear s M onth s 07 D a ys
Education Level:        AFQT: 99
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 2.6 ( 3 )        OTA: 3.42

Awards and Decorations ( per DD 214):      Pistol (2) (2) (4) (2) (3) (2) (5)

Periods of UA /C ONF :

NJP:

- 20060907 :      Article (Wrongful use, possession, etc. of controlled substances)
         Awarded: Susp ended:

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:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 921221 UNTIL 041005 ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS- 312A, 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 seeks an upgrade to qualify for the G.I. Bill.
2.       The Applicant conten d s his discharge was based on an isolated incident in 13 years and 10 months of service.
3 .       The Applicant conten d s he did not have a n Adderall prescription for the urinalysis but did for his Captain’s Mast .
4 .       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 4 0220             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. T he 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 in his current enlistment included for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc., of controlled substances ) . Based on the Article 112a violation, processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel and submit a written statement . His DD Form 214 Separation Code of HKK i ndicates he waived his rig ht to an administrative board.

: (Nondecisional) The Applicant seeks an upgrade to qualify for the G.I. Bill. 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. The Applicant is encouraged to reapply to the Department of Veterans Affairs for G.I. Bill benefits using one of his previous Honorable enlistments.

: (Decisional) ( ) . The Appl icant conten d s his discharge was based on an isolated incident in 13 years and 10 months of service. The Applicant received Honorable discharges for his first three enlistments from December 1992 to October 2004. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his fourth enlistment, he was found guilty of violating UCMJ Article 112a. Certain serious offenses , even though isolated, warrant separation from the service 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. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge and the even more lenient General characterization of service . Relief denied.

: (Decisional) ( ) . The Applicant conten d s he did not have an Adderall prescription for the urinalysis but did for his Captain’s Mast . The Applicant contends he was in the proces s of being evaluated for A ttention Deficit Hyperactivity Disorder , consumed one pill of Adderall from a friend as a test, but he was unaware that Adderall was amphetamine-based or a controlled substance. As a First Class Petty Officer with almost 14 years of service, he was fully aware of the Navy’s zero-tolerance drug policy and should have been aware of what he was ingesting. The NDRB presumes his commanding officer was aware of these contentions at his NJP and also presumes that the Applicant received a lenient General characterization of service because of the circumstances surrounding his violation of UCMJ Article 112a. Furthermore, i f the Applicant believed there were mitigating circumstances, it was his obligation to contest those charg es at the time they were made. Although his administrative discharge package was not in his record, his DD Form 214 Separation Code of HKK indicates he waived his right to appear before an Administrative Separation Board. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct as evidenced by his post-service employment warrants consideration for an upgrade. The NDRB is authorized to consider post-service factors in the re-characterization of a 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 on a 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 servi ce shall remain General (Under Honorable Conditions ) . 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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NAVY | DRB | 2013_Navy | ND1301550

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