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NAVY | DRB | 2014_Navy | ND1400925
Original file (ND1400925.rtf) Auto-classification: Denied

ex-FR, USN
Current Discharge and Applicant’s Request
Application Received: 20140409
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)        20090227 - 20090428     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090429     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090922      Highest Rank/Rate: FN
Length of Service: Y ear( s ) M onth( s ) 04 D a y ( s )
 Education Level:        AFQT: 86
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 1.50

Awards and Decorations ( per DD 214):     

Period of UA :

NJP :     SPCM:    CC:      Retention Warning Counseling :

S CM :

- 20090821 :       Art icle (Failure to obey order or regulation , 3 specifications )
         Sentence : (20090821-20090910, 19 days)

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92 .


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

Applicant’s Issues

 1.        The Applicant contends his court-martial conviction for drug abuse w as overturned and charges dismissed, and his command then improperly discharged him for commission of a serious offense.
2.       The Applicant contends h e spent nearly 30 days in confinement and was discharged Under Other Than Honorable Conditions for minor infractions.

Decision

Date : 20 1 4 0911             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 discharg e 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 included for of the UCMJ: Article 92 (Failure to obey order or regulation , 3 specifications). The Applicant was charged and found guilty at the same S ummary Court-Martial f or violations of Article 112a (Wrongful use, possession, etc., of a controlled substance , 2 specifications). Based on the drug violations, the Applicant’s command administratively processed him for separation. However, a review of the S ummary Court-Martial findings by the Staff Judge Advocate found impropriety in the Article 112a conviction , and the Convening Authority ordered the Article 112a conviction overturned and the charges dismissed. The Applicant’s command then processed him for administrative separation based on commission of a serious offense as evidenced by the S ummary Court-Martial Article 92 convictions. When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends his court-martial conviction for drug abuse was overturned and charges dismissed, and his command then improperly discharged him for commission of a serious offense. On 2 September 2009, the Applicant’s command notified him of the intent to process him for administrative separation based on: 1) Misconduct (Serious Offense) and 2) Misconduct (D rug A buse ) . The Applicant signed the notification letter and initialed that he waived his rights to consult with qualified counsel, to submit a written statement, and to request an administrative separation board. Therefore, having properly notified the Applicant of administrative separation, there was no requirement to re-notify him when the Separation Authority chose Misconduct (Serious Offense) as the primary reason for separation after it was determined that Misconduct (Drug Abuse) was no longer valid . As the Applicant was found guilty at S ummary Court-Martial for three specifications of violati ng Article 92, which is considered a serious offense per Appendix 12 of the Manual for Courts-Martial, a preponderance of evidence supported his administrative separation for Misconduct (Serious Offense). The NDRB determined the Applicant’s separation for Misconduct (Serious Offense) was proper. Relief denied.

: (Decisional) ( ) . The Applicant contends he spent nearly 30 days in confinement and was discharged Under Other Than Honorable Conditions for minor infractions. The Applicant was found guilty at S ummary Court-Martial f or violations of Article 112a and Article 92 and sentenced to 30 days confinement and reduction to Fireman Recruit. Although a legal review of the S ummary Court-Martial fo und that the Article 112a charges were improper because the use of the drug was not wrongful , the review also determined that the conviction and sentence was legal for violations of Article 92 ; the Convening Authority affirmed the court-martial conviction and punishment for violating Article 92 . When reviewing the specifics of the Article 92 violations, however, the NDRB determined violation of curfew, consuming alcoholic beverages, and wearing civilian clothes did not warrant an Under Other Than Honorable Conditions characterization after only four months of service. The NDRB further determined a more equitable characterization of service is Uncharacterized (Entry Level Separation), which is warranted when s eparation is initiated while a member is within the first 180 days of continuous active

duty except when the characterization of service as Under Other Than Honorable Conditions (UOTHC) is authorized or Honorable is clearly warranted. The NDRB determined the Applicant’s misconduct did not warrant an UOTHC discharge, and there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization. F inally, the NDRB determined it would also be equitable to change the Narrative Reason for Separation to Secretarial Authority since Misconduct (Serious Offense), although proper, is too harsh for the violations. Relief granted.

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 change to . 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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