ex-HA, USN

Current Discharge and Applicant’s Request


Applicant’s Request: Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS)
                  Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20060224 - 20060907 COG         Active:  NONE

Pre-Service Drug Waiver: NO

Period of Service Under Review:
Date of Current Enlistment: 20060908    Age at Enlistment: 19
Period of Enlistment: 4 Years 12 MONTHS Extension
Date of Discharge: 20090205     Highest Rank/Rate: HN
Length of Service: 02 Year(s) 04 Month(s) 29 Day(s)
Education Level: 12     AFQT: 40
Evaluation Marks:        Performance: 4.0 (2)     Behavior: 2.5 (2)       OTA: 3.17

Awards and Decorations (per DD 214):     NDSM    

Periods of UA/CONF: NONE

NJP: 1

- 20080912:      Article 112a (Wrongful use, possession, etc., of controlled substances, Marijuana, 20 ng/mL)
         Awarded: FOP RIR RESTR EPD Suspended: NONE

SCM: NONE SPCM: NONE CC: NONE Retention Warning Counseling: NONE

NDRB Documentary Review Conducted (date):        20140702
NDRB Documentary Review Docket Number:   ND14-00465
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:

         Block 28, Narrative Reason for Separation, should read: “MISCONDUCT (DRUG ABUSE)”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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

         Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
         Block 28, Narrative Reason for Separation, should read: “MISCONDUCT (DRUG ABUSE)”
        
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:        

Types of Witnesses Who Testified

         Expert:           Character:      

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 1999 until
26 March 2000, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 1999 until

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 admits his mistake, contends that his drug use was due to getting involved with a bad crowd, and submits post-service information to illustrate his good character.
1.       Nondecisional issues (e.g., reenlistment, employment, education) [Use short phrases ] (e.g., Wants to reenlist in the Navy/National Guard. Wants to use the GI Bill money to attend college. )
2.       Decisional issues (e.g., Isolated incident, record of service, post-service conduct)
The Applicant did not state any issues.

Decision

Date: 20150716   PERSONAL APPEARANCE HEARING     Location: Washington D.C.        Representation: NONE

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS) .
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (DRUG ABUSE) .

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 Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc., of controlled substances). Based on the offense committed by the Applicant, his command administratively processed him for separation. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the administrative board procedure, the Applicant elected his right to consult with a qualified counsel and waived his rights to submit a written statement and request an administrative board.

Issue 1: (Decisional) (Equity) RELIEF WARRANTED. The Applicant admits his mistake, contends that his drug use was due to getting involved with a bad crowd, and submits post-service information to demonstrate his good character. The Applicant provided two letters of reference, a marriage certificate, and church appointments as well as a character witness to testify on his behalf. 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 and to determine if post-service accomplishments demonstrate that the in-service misconduct was an aberration and not indicative of the member’s overall character. After a careful review of the Applicant’s records, supporting documents, post-service documentation, and testimony, the NDRB determined that relief was warranted based on equity. A General (Under Honorable Conditions) discharge is appropriate after considering the Applicant’s single NJP for drug use weighted against his entire period of service. The NDRB determined the post-service accomplishments help demonstrate the in-service misconduct was an aberration and not indicative of the member’s overall character. The NDRB voted to upgrade the characterization of service to General (Under Honorable Conditions). Relief granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper but not equitable at the time of discharge. Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE).

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.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 NUMBER OF NAVPERS 1070/613 (Page 13) warnings, NUMBER OF ???? for ????? of the Uniform Code of Military Justice (UCMJ): Article ??? (Title of Article, 1 specification), Article ??? (Title of Article, 1 specification), and Article ??? (Title of Article, 1 specification); and NUMBER OF ???? for ????? of the UCMJ: Article ??? (Title of Article, 1 specification). The Applicant also had 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 waived ???? rights to consult with a qualified counsel, submit a written statement, and request [an administrative board] [a General Court-Martial Convening Authority review]. [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, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review]

???: (Nondecisional) [ STATE ISSUE ] USE THE PROPER PARAGRAPH FROM THE ADDENDUM

???: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends

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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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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