ex-SHSA, USN

Current Discharge and Applicant’s Request

Application Received: 20080408
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:	USNR (DEP)	20011009 - 20011125  	Active:	

Period of Service Under Review:
Date of Enlistment:  20011126	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050222 (Discharged in Absentia)	Highest Rank/Rate:  SH3
Length of Service:   Year(s)     Month(s)   27 Day(s)
Education Level:  	AFQT:  45
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  2.5 (2)	OTA:  2.92

Awards and Decorations (per DD 214):	   (2)   

Periods of UA/CONF:  Discharged in absentia (On UA status since 19 January 2005 per CO, USS GEORGE WASHINGTON (CVN-73) ltr [1910 Ser 45]/1039 of 08 Feb 05).

NJP:  
- 20040414:	Article 92 (Failure to obey other lawful written orders by wrongfully engaging in horseplay)
	Awarded:     Suspended:  

- 20050119:	Article 86 (UA 0700, 20041211 – 0600, 20041214 - 3 days)
	Article 92 (Disobeying an order – failure to secure a TV during working hours)
	Article 112a (Drug use, wrongful use of marijuana)
	Awarded:     Suspended:  

SCM:     SPCM:     CC:  

Retention Warning Counseling:  

- 20040312:	For violation of UCMJ, Article 134 (Debt, dishonorable failing to pay).

Administrative Corrections to the Applicant’s DD 214

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

	  “03  01  18”
Block 18, Remarks, should include:  “In an unauthorized absence status from 20050119 TO 20050222.”
 Dates of Time Lost During This Period, should include: “TL - 19JAN05 TO 22FEB05”
  “UNDER OTHER THAN HONORABLE CONDITIONS”

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:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

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

Applicant’s Issues

1.  Intervening circumstances led to a change in behavior.

Decision

Date:  20090507		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:  ()  .  The Applicant contends intervening circumstances that were out of his control led to a change in his behavior.  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’s record of service was marred by one NAVPER 1070/613 (Page 13) warning and two NJPs for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, absence without leave, 3 days); Article 92 (Failure to obey order or regulation), 2 specifications); and Article 112a (Drug use, wrongful use of controlled substances – marijuana).  The Applicant also had a pre-service drug waiver for using marijuana twice prior to entering the Navy.  The NDRB advises the Applicant certain serious offenses warrant separation from the service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service record of service, or grade.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which 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 an administrative discharge based on his misconduct for drug use. 

The Applicant contends his misconduct was caused by a series of events which affected his decision making.  In March 2002, he had a son out of wedlock, but married the mother (who already had two children) the following month.  Two months later in June 2002, he deployed and while deployed, found out his wife was living with another man.  He also was informed the rent wasn’t being paid and the house was under investigation for drug trafficking.  In December 2002, after returning from deployment, his wife was severely beaten by the “other” man, had spent all their money, was on drugs, and later diagnosed as a severe manic depressive.  When he attempted to file for divorce his wife tried to commit suicide.  As a result, he decided not to get a divorce and then moved his family into base housing in February 2003.  A few months after moving in, the couple got into a big argument and she fired a .38 caliber handgun at him, but missed.  As a result of this incident apparently they had to move out of base housing and find a place to live as he was getting ready for another deployment.  While on deployment, the Applicant’s in-laws moved in with his now pregnant wife and he supported all of them on his E-4 pay until the in-laws found jobs.  Just before returning from deployment, the in-laws moved out but did not pay their share of the rent.  In August 2004, the mother-in-law died from a drug-induced aneurism.  In December 2004, one of the Applicant’s grandmothers passed away.  The day after returning from the funeral, the grandfather passed away.  The Applicant states he needed help in coping with all three deaths, but did not receive any support from his the command.  Two weeks after his grandfather passed away, the Applicant’s best friend was shot and killed, and the command would not allow him to take leave to attend the funeral.  He left anyway to attend the funeral and then smoked marijuana as an outlet from his problems.  Realizing what he did, the Applicant returned to the command.  

In the meanwhile, the wife’s drug addiction worsened and she cheated on the Applicant “countless times.”  When the Applicant found out she cheated on him with his 18-year-old cousin, she stabbed the Applicant and was arrested, convicted of felony assault, and sentenced to 5 years in jail.  Later she was released on probation and moved to Ohio to live with her father.  In July 2007, the Applicant went to Ohio to take custody of his two sons, but was beaten up by his “wife’s family and gang members.”  The Applicant returned to Washington, DC and moved in with his grandmother and filed for divorce; which was granted in November 2008.  He is currently paying child support and seeking custody of his sons.

The Applicant states he had many stressors in his life, but unfortunately, did not provide any documentation to support any of the above claims.  From the Commanding Officer’s letter of 08 February 2005, the Applicant was in a UA status since 19 January 2005 and was discharged from the Navy in absentia.  If the Applicant felt there were mitigating circumstances, it was his obligation to contest those charges at the time they were made.  During an administrative separation board, he would have had the opportunity to mount a defense against the charges against him. While the Applicant may believe his misconduct was due to incidents out of his control, the record does not reflect he was not responsible for his actions or not accountable for his misconduct due to those incidents.  The NDRB determined the characterization of service received, Under Other Than Honorable Conditions, was an appropriate characterization considering the length of service, the UCMJ violations involved, and no post-service documentation; an upgrade would be inappropriate.   

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  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 help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (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 or completion of higher education (official transcripts); and documentation of alcohol non-dependency and 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.  Should the Applicant obtain additional evidence or post-service documentation he may wish to apply for a personal appearance.  There are veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and DD Form 293 submitted by the Applicant, the Board found 

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, 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 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 violations of the UCMJ:  Articles 92 and Article 112a.

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 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:  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 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 Board for Correction of Naval Records (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 subsequently is processed for an administrative involuntary separation or is referred to a court martial 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 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 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 NDRB 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 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