ex-SK2, 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)       19850325 - 19850327     Active:  19850328 - 19890216
                           Active:  19890217 - 19920209
                           Active:  19920210 - 19980219
                           Active:  19980220 - 20030209

Period of Service Under Review:

Date of Current Enlistment: 20030210     Age at Enlistment: 39
Period of Enlistment: Years Extension
Date of Discharge: 20050310      Highest Rank/Rate: SK1
Length of Service: Year(s) Month(s) 01 Day(s)
Education Level:         AFQT: 57
Evaluation Marks:        Performance: 4.00 (1)    Behavior: 3.00 (1)       OTA: 3.86

Awards and Decorations (per DD 214):     (3) (3) (3) (2) (2) (2) (2) (4) KCM NEM LoC LoA EAWS

Periods of UA/CONF:

NJP:

- 20040727:      Article 112a (Wrongful use, possession, etc., of controlled substances)
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

CC:

- 20041004:      Offense: NFIR
         Sentence: 30 days incarceration [Extracted from Commanding Officer, USS ASHLAND (LSD 48) administrative separation ICO SK2 Travis]

Retention Warning Counseling:




Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (3), NAVY UNIT COMMENDATION (3), GOOD CONDUCT MEDAL (3), ARMED FORCES EXPEDITIONARY SERVICE MEDAL (2), NATIONAL DEFENSE SERVICE MEDAL (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NATO MEDAL (2), NAVY EXPEDITIONARY MEDAL, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON (2), SEA SERVICE DEPLOYMENT RIBBON (4), KOSOVO CAMPAIGN MEDAL, LETTER OF COMMENDATION, LETTER OF APPRECIATION, ENLISTED AVIATION WARFARE SPECIALIST”
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 850328 UNTIL 030209”
         “”

The NDRB will recommend to the Commander, Navy Personnel Command, 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 33, effective 22 August 2002 until
28 April 2005, 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.

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

Applicant’s Issues

1. The Applicant contends he was depressed and stressed out.
2. The Applicant contends that his service was honorable.
3. The Applicant contends that family and personal problems contributed to his misconduct.
4. The Applicant contends his discharge was based on an isolated incident.
5. The Applicant contends he does not deserve this harsh and continuous punishment.

Decision

Date: 20150709            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’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc., of controlled substances), and one civilian conviction. The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the offenses committed by the Applicant, command administratively processed for separation. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant elected rights to consult with a qualified counsel, submit a written statement, and request an administrative board. The Administrative Board found that the preponderance of the evidence supported misconduct; the Administrative Board recommended separation. The Separating Authority(SA) approved the Administrative Board’s recommendation to separate the Applicant. The SA directed the Applicant be separated with Under Other Than Honorable Conditions discharge.

: (Decisional) () . The Applicant contends he was depressed and stressed out. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The NDRB requested the Applicant’s medical treatment records, but the VA was unable to locate them. Furthermore, the NDRB did not find any reference to the Applicant being diagnosed as depressed and stressed out. The Applicant did not provide any documentary evidence of a medical diagnosis by competent medical authorities to support his claim. After an exhaustive review, the NDRB determined that the Applicant’s claim of being depressed and stressed out did not mitigate his misconduct. Relief denied.

: (Decisional) () . The Applicant contends that his service was honorable. The Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance regarding a benefit determination review. Based on the Applicant’s four periods of Honorable Service, he is eligible for VA Benefits. As far as this last period of enlistment, The NDRB determined that the Applicant was responsible for his conduct and that he should be held accountable for his actions. Relief denied.

: (Decisional) () . The Applicant contends that family and personal problems contributed to his misconduct. While the Applicant may feel that his family difficulties were a contributing factor 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.

4: (Decisional) () . The Applicant contends his discharge was based on an isolated incident. 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 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.

5: (Decisional) () . The Applicant contends he does not deserve this harsh and continuous punishment. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his discharge was improper or inequitable. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, the Applicant may request a Personal Appearance Hearing in order to inform the board of all the details relating to his misconduct by providing documentation of his misconduct, civilian conviction and administrative separation. 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 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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