ex-ET3, USN
ND06-01083

Current Discharge and Applicant’s Request:

Application Received:  				20060815     
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	FACSFAC, NAS NORTH ISLAND CA

Applicant’s Request:
	Narrative Reason change to:		NOT APPLICABLE
	Characterization change to:		
	Review Requested:			
Representation:  					
Issues (as summarized by NDRB):			1.  Re-enlist
						2.  GI Bill
						3.  Found not guilty at Admin Board, then discharged 1 year later.

Decision:

Date of Decision:					20070719
The Discharge shall change :		
						MISCONDUCT (SERIOUS OFFENSE)
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   - .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20000204-20000228 COG
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				20000229     
Years Contracted:  				;        
Date of Discharge:				20051017
Length of Service:				05  Yrs 07  Mos  19  Days
Time Lost During This Period:			NONE
Days Unauthorized Absence:			NONE     
Days Confinement:				NONE     

Education Level:  				
Age at this Enlistment:  				
AFQT:  						58
Highest Rate/Rank:				ET3

Performance Evaluation Averages (number of marks):
Performance:					3.5 (6)
Behavior:					2.6 (6)
OTA:						3.20

Awards and Decorations (as listed on the DD Form 214):
SEA SERVICE DEPLOYMENT RIBBON, NATIONAL DEFENSE SERVICE MEDAL, GOOD CONDUCT MEDAL, ARMED FORCES EXPEDITIONARY MEDAL

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20040603:	Applicant charged by the Department of Homeland Security, Customs and Border Protection, with drug smuggling.  Items seized: TESTOPRIM-D 12 ML, DECADURABOLIN: 4ML (steroids).

20040604:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 112a (wrongful possession of a controlled substance) 20030603; Article 134 (Fleeing the scene of an accident) 20040318; Article 108 (destruction of military property, Spec #1 gov vehicle, Spec #2 San Clemente Bldg) 20040318.  

20040609:	NJP for violations of UCMJ referred to administrative discharge board.

20040609:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

undated:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

undated:	An Administrative Discharge Board, found that the evidence does  no support a preponderance and by unanimous vote, recommended retention.

20040106:	Counseling:  Advised of deficiency (improper watch standing), notified of corrective actions and assistance available.

20041019:	An Administrative Discharge Board, the board did not find misconduct – drug abuse by unanimous vote and by unanimous vote recommended retention.

20050615:	Counseling:  Advised of deficiency (failed to report to air terminal for duty), notified of corrective actions and assistance available 

20050706:	Counseling:  Advised of deficiency (failed to report for CMS test), notified of corrective actions and assistance available.

20050725:	Counseling:  Advised of deficiency (reported to take CMS re-qual test reeking of alcohol), notified of corrective actions and assistance available.

20050725:	Counseling:  Advised of deficiency (failed CMS qualification test twice, beyond maximum 2 month time limit to become qualified), notified of corrective actions and assistance available.

20050822:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

20050822:	Applicant advised of rights and having consulted with counsel, elected to waive his right to a General Court Martial Convening Authority review, and elected his rights to submit statements to the separation authority and to obtain copies of documents used to support the basis for his separation.

20050923:	Commanding Officer, Area Control and Surveillance Facility, San Diego, informed the Commander, Navy Personnel Command of his intent to administratively discharge the Applicant by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “This case was improperly processed by the previous chain of command.  I do not concur with the findings and recommendations of the Administrative Board.  ET3 G_ (Applicant) was taken to non-judicial punishment for drug smuggling and an alcohol related traffic accident/incidents which occurred on San Clemente Island.  The previous Commanding Officer failed to impose any punishment for the alleged offenses and ordered an administrative board for the drug-trafficking charge and failed to process for all reasons including commission of a serious offense.  Additionally ET3 G_ did not receive proper screening by the command’s Drug and Alcohol Program Advisor for alcohol abuse.  Since then ET3 G_ completed the Prevent course on alcohol misuse and interpersonal responsibilities.  He has received counseling for poor performance, multiple failures of CMS handling procedures examinations, and for another alcohol-related incident.  He continues to demonstrate a lack of maturity and reliability.  ET3 is currently enrolled in alcohol rehabilitation and will be processed for Administrative Separation under Notification procedures for misconduct, commission of a serious offense.”

20051017:	Applicant discharged for misconduct due to the commission of a serious offense with a characterization of service as General (under honorable conditions).

20051027:	Commanding Officer, Fleet Area Control and Surveillance Facility, San Diego, forwarded the administrative discharge package to CNP informing of the Applicant’s administrative discharge on 20051017 as General (under honorable conditions) by reason of Misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  “Following Petty Officer G_’s (Applicant) 2004 NJP, he demonstrated difficulty in conforming to Navy standards.  Lack of judgment, poor job performance, and additional alcohol-related incidents continued to plague him.  He was provided every opportunity to correct his shortcomings, but failed to meet even the most basic standards expected of a Sailor.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20040609
Reason for Discharge				
						
Least Favorable Characterization:			
Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Administrative Board Date:			UNDATED
Findings and Recommendations:			EVIDENCE DOES NOT SUPPORT CHARGES; Vote:  3 - 0      
Separation Warranted:				; Vote:  3 - 0
Recommendation Regarding Separation:		

Discharge Process:				
Date Notified:					NOT FOUND IN RECORD
Reason for Discharge				NOT FOUND IN RECORD
						
Least Favorable Characterization:			NOT FOUND IN RECORD
Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel			NOT FOUND IN RECORD	
Administrative Board			NOT FOUND IN RECORD
Obtain Copies	  			NOT FOUND IN RECORD
Submit Statement(s) (date)			NOT FOUND IN RECORD       
GCMCA Review				NOT FOUND IN RECORD

Administrative Board Date:			20041014
Findings and Recommendations:			BOARD DID NOT FIND MISCONDUCT–DRUG ABUSE; VOTE 3 - 0
Separation Warranted:				; Vote:  3 - 0
Recommendation Regarding Separation:		

Discharge Process:				
Date Notified:					20050819
Reason for Discharge				
						
Least Favorable Characterization:			
Date Applicant Responded to Notification:		20050822
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Discharge directed by (date):			COMMANDING OFFICER 20051027      
Narrative reason directed:				
Characterization directed:				GENERAL (UNDER HONORABLE  CONDITIONS)
Date Applicant Discharged:			20051007

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				15
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				15

Discussion

Issues 1 (re-enlist) and 2 (GI Bill):   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Decisional Issues:

Issue 3 (found not guilty at admin board then discharged 1 year later, ):   In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant contends that he was found innocent at an Administrative discharge board then discharged one year later for the same offense.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant.   The Board found the Applicant’s Administrative Discharge boards only reviewed the drug charges and therefore did not find him innocent of the violations of UCMJ Article 134 (fleeing the scene of and accident and destruction of military property).  Each violation is considered the “commission of a serious offense”, the misconduct for which the Applicant was discharged.  For the information of the Applicant an administrative discharge is not punishment, the decision to administratively discharge a servicemember is made independently of and does not require adjudication at court martial or nonjudicial punishment.  The characterization of service is a description of the total service provided during the members enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General (under honorable conditions) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by five counseling’s for poor performance, multiple failures of CMS handling procedures examinations, alcohol-related incidents, a demonstrated a lack of maturity, and reliability issues.   The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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