Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400476

Original file (ND1400476.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20140129

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)        19980612 - 19991114     Active:

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 19991115     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20001117      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.50

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP:

- 20001019 :      Article (Wrongful use, possession, etc. of controlled substances , marijuana )
         Awarded: Suspended:

SCM:     SPCM:    C C :      Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20130724
NDRB Documentary Review Docket Number:   ND 13-00284
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

         “ SA ”
         “ E2 ”

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

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 contends new medical and service - related information that was not available to him at the time of discharge warrants consideration for an upgrade .

Decision

Date: 20 1 4 0717 Location: Washington D.C . R epresentation :

T he Characterization shall .
T he Narrative Reason shall .

Discussion

On 21 Oct 2014, the Secretarial Review Authority (SRA), following a NDRB review, determined that the Applicant’s discharge shall remain “Under Other Than Honorable Conditions by reason of Misconduct.” On 17 July 2014 the Applicant received a Personal Appearance Hearing before the NDRB. The Personal Appearance Hearing panel voted 4-1 to upgrade the Applicant’s discharge to General (Under Honorable Conditions) and 4-1 to change the Narrative Reason for Separation to Secretarial Authority. However, the NDRB President forwarded the case to the SRA for review per NDRB recommendation memorandum of 15 August 2014. The Applicant was notified of the determination of the Personal Appearance Hearing panel and the NDRB President’s recommendation memorandum via letter of 21 August 2014 and given until 19 October 2014 to review the information and submit a rebuttal. No rebuttal was received by the NDRB or the SRA.

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 discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession, etc. of controlled substances, marijuana, ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

: (Decisional) () . The Applicant contends new medical and service-related information that was not available to him at the time of discharge warrants consideration for an upgrade. The Applicant submitted a negative urinalysis test dated 17 October 2000 and a Department of Veterans Affairs Administrative Decisional letter from 29 January 2014 stating the Applicant was diagnosed with TBI, PTSD, and Adjustment Disorder with Mixed Anxiety and Depressed Mood. Based on the Applicant’s service record and credible evidence submitted to the NDRB, the NDRB found it more likely than not that the Applicant did not wrongfully use or possess a controlled substance while in the service. The record also shows the Applicant’s command received a recommendation from mental health professionals on 18 October 2000 that the Applicant be discharged due to a Schizotypal Personality Disorder. After his NJP on 19 October 2000, the Applicant was processed for administrative separation for Misconduct (Drug Abuse).

SECNAVINST 5420.174D, Section 403.m. (6), provides for a presumption of “regularity in the conduct of governmental affairs,” and that this presumption is to be applied in any NDRB review unless there is substantial credible evidence to rebut the presumption. In this case, this burden has not been met. The negative urinalysis message does not establish the Applicant’s non-use of illegal drugs while on active duty. Additionally, there is no evidence the results of the urinalysis were the basis for the NJP proceedings or findings. In fact, per the Applicant’s own testimony, the guilty finding at NJP was based upon his affirmative response to a question from his Commanding Officer as to whether he had used drugs. The Applicant’s testimony regarding his response to his Commanding Officer’s question, and his assertion he was not allowed to explain prior to the imposition of NJP is the only evidence that provides any basis for contesting the propriety and equity of his discharge. However, per SECNAVINST 5420.174D, the presumption of regularity in governmental affairs can only be overcome by substantial and credible evidence. The Applicant’s uncorroborated statements made fourteen years after his discharge do not satisfy that evidentiary requirement. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries , and discharge process, the Secretarial Review Authority found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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 | 2015_Navy | ND1501037

Original file (ND1501037.rtf) Auto-classification: Denied

Narrative Reason for Discharge: (per DD 214) MISCONDUCT (DRUG ABUSE) ” 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. 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...
NAVY | DRB | 2015_Navy | ND1500044

Original file (ND1500044.rtf) Auto-classification: Denied

After carefully reviewing the Applicant’s record, and her statement to the NDRB, the NDRB determined that, although the Applicant did use Oxycodone, her Oxycodone use was expressly prescribed to her by medical authorities, and there was no evidence of wrongful use. 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 change to...
NAVY | DRB | 2015_Navy | ND1401504

Original file (ND1401504.rtf) Auto-classification: Denied

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: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member: Pertinent Regulation/Law A. NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...
USMC | DRB | 2014_Marine | MD1400808

Original file (MD1400808.rtf) Auto-classification: Denied

The record also shows the Applicant’s administrative separation board determined that the preponderance of the evidence supported that the Applicant had committed misconduct. However, the record shows the Applicant was separated from the Marine Corps on 27 February 2014, six weeks following his administrative separation board. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is...
USMC | DRB | 2015_Marine | MD1500760

Original file (MD1500760.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: Pertinent Regulation/Law A. ” Additional Reviews :...
NAVY | DRB | 2015_Navy | ND1500536

Original file (ND1500536.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 (DRUG ABUSE). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application...
USMC | DRB | 2015_Marine | MD1501074

Original file (MD1501074.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. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other...
USMC | DRB | 2015_Marine | MD1500819

Original file (MD1500819.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...
NAVY | DRB | 2015_Navy | ND1500981

Original file (ND1500981.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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 HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT - PATTERN OF MISCONDUCT. ” Additional Reviews :...
NAVY | DRB | 2015_Navy | ND1500717

Original file (ND1500717.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 HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application...

Search Decisions

Decision Text

NAVY | DRB | 2014_Navy | ND1400476

Similar Decisions