ex-ABEAN, USN

Current Discharge and Applicant’s Request


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

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       19950923 - 19951016     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 19951017    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 19991004     Highest Rank/Rate: ABE3
Length of Service: Year(s) Month(s) 18 Day(s)
Education Level:        AFQT: 53
Evaluation Marks:        Performance: 2.9 (7)     Behavior: 2.0 (7)       OTA: 2.65

Awards and Decorations (per DD 214):    

Periods of CONF:

NJP:

- 19960821:      Article (Absence without leave; Unauthorized absence from 12JUN1996 until 17JUN1996).
         Article (Missing movement; Missed ship’s movement on or about 17JUN1996).
         Awarded: Suspended:

- 19980930:      Article (Absence without leave; Unauthorized absence from his unit on or about 98AUG29, for a period of about two days.)
         Awarded: Suspended:

- 19990615:      Article (Absence without leave; Unauthorized absence from on or about 0530, 99MAY21, to on or about 0530, 99MAY24.)
         Article (Wrongful use, possession, etc. of controlled substances; Amphetamines 1440 ng/mL and ecstasy 13993 ng/mL on or about 99MAY03.)        
         Awarded: Suspended:

SCM:

SPCM:

CC:

Retention Warning Counseling:

- 19960821:      For Article 86 (Absence without leave).
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 18, effective 12 December 1997 until
19 May 1999, 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 that his discharge was improper because he did not have a pattern of misconduct as evident by his awards, recommendations for retention, and evaluations.
2. The Applicant contends that his discharge was improper because he did not intentionally miss ship’s movement.
3. The Applicant contends that his discharge was improper because his youth and immaturity impaired his ability to serve and led to his one-time drug use.
4. The Applicant contends that his discharge was inequitable because he was less than a month from his EAOS.
5. The Applicant contends that his post-service conduct is worthy of consideration for an upgrade to Honorable.

Decision

Date: 20150108            Location: Washington D.C.        Representation:

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant did not identify any decisional issues to the Board. However, 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 NAVPERS 1070/613 (Page 13) warnings, and for of the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, ), Article (Missing movement, ), and Article (Wrongful use, possession, etc. of controlled substances, ). The Applicant a pre-service drug waiver 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 for reasons of Pattern of Misconduct, Commission of a Serious Offense, and Drug Abuse, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Administrative Board was held 19990823 and the board found by a vote of 3-0 that the preponderance of the evidence supported all the reasons for processing, recommended separation from the Naval service, and recommended a discharge of Under Other Than Honorable Conditions.

: (Decisional) () . The Applicant contends that his discharge was improper because he did not have a pattern of misconduct as evident by his awards, recommendations for retention, and evaluations. The Applicant also contends that his discharge was improper because he did not intentionally miss ship’s movement. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.

MILPERSMAN 1910-140, Separation by Reason of Misconduct – Pattern of Misconduct states that a member may be separated when during the current enlistment they have two or more non-judicial punishments, court-martial, or civil convictions (or combination thereof). The member must have violated a NAVPERS 1070/613 warning prior to processing. The Applicant record of service shows that he had three NJPs and one NAVPERS 1070/613 warning meeting the conditions of a Pattern of Misconduct.

MILPERSMAN 1910-142, Separation By Reason Of Misconduct - Commission of a Serious Offense states that members may be separated based on commission of a serious military or civilian offense when the specific circumstances of the offense would warrant separation and the offense would warrant a punitive discharge per Manual for Courts-Martial (MCM). The MCM states that the maximum punishment of violation of Article 87 (Missing Movement) through neglect is a Bad Conduct Discharge. Although the member could have been separated at this point in his career, his command opted to give him another chance to serve honorably and earn his Honorable discharge. The Applicant was given the opportunity to present matters of mitigation at his NJP held on 19960821 as well as the Administrative Separation Board held on 19990823 to the charge of Missing Movement. During both occasion, it was found that a preponderance of the evidence supported the fact that the Applicant was guilty of Missing Movement. A preponderance of the evidence reviewed supports the conclusion that the Applicant did meet the conditions of both a Pattern of Misconduct and Commission of a serious offense. The NDRB found that an upgrade would be inappropriate. Relief denied.

: (Decisional) () . The Applicant contends that his discharge was improper because his youth and immaturity impaired his ability to serve and led to his one-time drug use. The Applicant also contends that his discharge was inequitable because he was less than a month from his EAOS. Certain serious offenses 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 or time remaining 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. The Applicant was given the opportunity to present matters of mitigation which would have included his awards, evaluation, and time left in service to the Administrative Board held on 19990823. The Board found by a vote of 3-0 that the Applicant should be separated with an Under Other Than Honorable Conditions characterization of service. The NDRB did not find any inequity in the discharge of the Applicant. Violation of the Navy’s Drug Policy is a serious offense in itself and is worthy of an Under Other Than Honorable separation. The Applicant had three reasons for separation that each independently could have gotten him an Under Other Than Honorable Conditions discharge. After an exhaustive review of the record, the Board found that Applicant was in violation of the Navy’s Drug Abuse Policy, that separation from the Naval Service was appropriate, and that an Under Other Than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) () . The Applicant contends that his post-service conduct is worthy of consideration for an upgrade to Honorable. The NDRB considers 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. The Applicant provided a personal statement, four character references, a copy of his Associates Degree, and copies of other academic acolades. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, 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. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the UCMJ violations. 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 Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. 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