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NAVY | DRB | 2014_Navy | ND1400029
Original file (ND1400029.rtf) Auto-classification: Denied

ex-MM3, USN
Current Discharge and Applicant’s Request
Application Received: 20131008
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)        20020104 - 20020218     Active:   20020219 - 20060209

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20060210     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20091102      Highest Rank/Rate: MM2
Length of Service : Y ear s M onth s 24 D a ys
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 4.1 ( 7 )      Behavior: 2.9 ( 7 )        OTA: 3.61

Awards and Decorations ( per DD 214):      ( 2) (3) (3) (3) (3)

Periods of UA /C ONF :

NJP:

- 20080305 :      Article (Drunk or reckless operation of a vehicle, aircraft, or vessel; did, on 25 January 2008, drive under the influence of alcohol onboard Naval Station Great Lakes)
         Awarded: Suspended:

- 20090310 :      Article (False official statements)
         Art icle (Drunk or reckless operation of a vehicle, aircraft, or vessel: did, on 07 Februrary 2009, drive under the influence of alcohol)
         Awarded: Suspended:

CIVIL ARREST:                      C C : NFIR

Retention Warning Counseling :

- 20080305 :       For CO’s Mast of 20080305; violation of UCMJ Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel ).

- 20090713 :       In accordance with Commander, Navy Personnel Command message 20080909Z July 09, you are being retained in the Naval Service until your EAOS as extended of 09 November 2010 despite your failure to successfully complete alcohol rehabilitation due to your alcohol dependency.




Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error on the original DD Form 214:

 “ CONTINUOUS HONO RABLE ACTIVE SERVICE FROM 020219 UNTIL 060209 ”
        
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 23, effective 2 June 2008 until 9 November 2009, 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 his overall conduct and performance warrants an upgrade.
2.       The Applican t contends his marital problems, depression, and alcohol dependence mitigate his misconduct.
3.       The Applicant contends he does not have a DUI or felony conviction on record in any state.
4.       The Applicant contends he did not test positive on a drug urinalysis.
5.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date: 20 1 4 0515             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 sta ndards of equity and propriety. The Applicant’s record of service in his current enlistment included NAVPERS 107 0/613 (Page 13) warnings and for o f the Uniform Code of Military Justice (UCMJ): Article ( False official statements) and Arti cle ( Drunk or reckless operation of a vehicle, aircraft, or vessel , 2 specifications) . Despite being granted a waiver for alcohol rehabilitation failure , on 08 July 200 9 , the Applicant was processed for administrative separation due to further misconduct. Based on a violation of the U.S. Navy Drug Policy , 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 co nsult with a qualified counsel and submit a written statement . However, the S eparation C ode HKK on the Applicant’s DD Form 214 indicates he waived his right to an administrative board.
: (Decisional) ( ) . The Applicant contends his overall conduct and performance warrants an upgrade. The Applicant received an Honorable characterization for his first enlistment from February 2002 to February 2006. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, the Applicant received two retention warnings and was found guilty at two NJPs. Since the Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. 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 was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his marital problems , depression, and alcohol dependence mitigate his misconduct. While the Applicant may feel that his marital difficulties , depression, and alcohol dependence were contributing factor s to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. Relief denied.





: (Decisional) ( ) . The Applicant contends he does not have a DUI or felony conviction on record in any state. Despite being found guilty at Captain’s Mast of violating UCMJ Article 111 (Drunk or reckless operation of a vehicle, aircraft, or vessel) on two occasions, the Applicant was retained on active duty. The Applicant was ultimately separated due to Misconduct (Drug Abuse) when he was arrested for possession of cocaine. Certain serious offenses warrant separation from the service to maintain proper order and discipline. Violation of the Navy’s 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 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. Relief denied.

: (Decisional) ( ) . The Applicant contends he did not test positive on a drug urinalysis. The NDRB was unable to review the Applicant’s complete discharge package, as it was not included in his official service record. The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. Per the Applicant’s statement, he wa s arrested in October 2009 for driving u nder the influence, fleeing and eluding , and possession of a controlled substance. Discharge for Misconduct (Drug Abuse) does not require a positive urinalysis. The illegal drug possession was a violation of the Navy’s policy and warranted separation. 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 trial or administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention , therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.

Issue 5: (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 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 service shall remain Under Other Than 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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