ex-HM3, USN

Current Discharge and Applicant’s Request

Application Received: 20080812
Characterization of Service Received:  
Narrative Reason for Discharge:  (DRUG ABUSE)
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20010914 - 20011210  	Active:	

Period of Service Under Review:
Date of Enlistment:  20011211	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060727	Highest Rank/Rate:  HM3
Length of Service:   Year(s)     Month(s)   17 Day(s)
Education Level:  	AFQT:  80
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  3.3(3)	OTA:  3.19

Awards and Decorations (per DD 214):	    

Periods of UA/CONF:  

NJP:  
- 20030425:	Article 107 (False official statement)
	Article 134 (False pretense)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20080131
NDRB Documentary Review Docket Number:	ND07-00599
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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:  

Applicant Testified:  
Applicant Available for Questions:  
Witnesses:   
Observers:   

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 3 May 2005 until Present, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.

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. Claims that the General (Under Honorable Conditions) discharge does not accurately reflect his character of service.
2. Seeks post-service conduct consideration. 

Decision

Date:  20091028		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall   (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 Applicant’s record of service includes   for  of the Uniform Code of Military Justice (UCMJ): Article 107 (False official statement) and Article 134 (False pretense).  The evidence of record also contains a Federal Bureau of Investigation Identification Record of 19 September 2001, which indicates between the period of November 1990 and March 1991 the Applicant: 1) had several felony convictions for possession of cocaine or possession with intent to sell/deliver, 2) had a felony conviction for hallucinogen–traffic, and 3) was arrested for disorderly conduct.  

The Applicant’s Record of Military Processing, DD Form 1966, indicates that he checked “no” in response to question 26, Have you ever tried, used, sold, supplied or possessed any narcotics, depressant, stimulant, hallucinogen, cannabis, or any mind altering substance, except as prescribed by a licensed physician?  Additionally, the Applicant completed the Office of Personnel Management Security Clearance Application of 14 September 2001 and denied ever being charged with or convicted of any felony, alcohol or drug related offense (see questions 21 – 24 on page 5).  The Applicant also completed an Electronic Personnel Security Questionnaire SF 86 Worksheet, wherein he denied using drugs since age 16 or within the past 7 years.

Per the Commander’s (Navy Personnel Command) letter of 2 November 2005, the Applicant’s command was notified that he failed to disclose his drug involvement upon enlisting in the Navy and directed the following: 1) that the police report be reviewed with the Applicant, 2) that he be processed for fraudulent enlistment, or 3) that the command request a waiver.  On 4 May 2006 the Applicant was notified of administrative separation processing due to fraudulent enlistment and elected to consult with counsel, submit written statements for consideration by the separation authority and obtain copies of documents that would be forwarded to the separation authority.  Pursuant to a letter of 17 July 2006, the Commanding Officer, 2nd Medical Battalion directed that the Applicant be discharged due to fraudulent enlistment with a characterization of General (Under Honorable Conditions). 

:  (Decisional) () RELIEF NOT WARRANTED.  The Applicant’s representative contends that the General (Under Honorable Conditions) does not accurately reflect his characterization of service.  The Applicant admitted to misconduct (obtained meals at the galley under false pretenses), took responsibility for his behavior and asked the Board to consider his time in service (almost five years) and completion of two deployments in Iraq prior to being involuntarily separated from the Navy.  The Board appreciates the Applicant’s service to our country; however, the Board determined that there was sufficient evidence to support a discharge based on fraudulent enlistment.  Additionally, the Board determined that an upgrade is not warranted, taking into consideration the seriousness of the offenses committed by the Applicant and his failure to disclose his pre-service criminal record, which included numerous arrests and felony convictions for illegal drugs, as previously discussed.  
:  (Decisional) ()  .  The Applicant’s representative is also requesting an upgrade to Honorable based on the Applicant’s post service conduct.  The following evidence was submitted for the Board’s consideration: 1) testimony of the Applicant on his academic accomplishments (graduated college Magna Cum Laude), financial support of his son, work history, and community service; 2) college transcripts; 3) a letter of recognition of July 2009 for completion of the State of North Carolina Guardian Ad Litem Program; 4) a criminal background check of July 2008; and, 5) a character reference.  While the Board appreciates the Applicant’s post-service efforts, the Board determined the Applicant’s post-service documented evidence was insufficient to form a basis of relief.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiates or relates directly to your issues in Item 6" (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct.  However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct documentation alone does not guarantee an upgrade.  

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   and the narrative reason for separation shall remain .

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), 2 Navy Annex, Washington, DC 20370-5100 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