ex-AW2, USN 

Current Discharge and Applicant’s Request

Application Received: 20090123
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)	20030113 - 20030128  	Active:	

Period of Service Under Review:
Date of Enlistment:  20030129	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20071024	Highest Rank/Rate:  AW2
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  84
Evaluation Marks:	Performance:  4.0 (2)	Behavior:  3.0 (2)	OTA:  3.57

Awards and Decorations (per DD 214):	NDSM GWOTSM NCM ACM NAVY”E” NMCOSR MUC SSDR Rifle  Pistol 

Periods of UA/CONF:  

NJP:     SCM:     SPCM:     CC:     Retention Warning Counseling:  

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. Veteran’s benefits.
2. Discharge was “inappropriate and unfair.”
3. Record of service.
4. Post-service conduct.

Decision

Date:  20090521		Location:  Washington D.C.	Representation:  

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

Discussion

:   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, specifically the paragraph concerning , regarding .

:  ()  .  The Applicant contends his discharge did not follow proper legal procedures, to wit: roommate was charged for the same offense but allowed to remain in the service; Applicant had requested a court-martial but not given one; at the time of initial questioning, Applicant was under the influence of Xanax (“a mind altering substance”) so his initial statement was not valid; he wanted legal representation but was told a JAG officer was not available so he waived his right for representation; advised by legal that his first statement would be “thrown out” so a new one was written, but at the Administrative Review Board (ARB), the ARB used his first statement and his legal officer had his second statement; and lastly, the recently reported admiral overturned the ARB’s decision.   In reviewing discharges, the NDRB 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 shows he was charged, but never taken to NJP, for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation by wrong-fully inhaling “dust off.”).  The NDRB advises the Applicant certain serious offenses warrant separation from the service to maintain proper order and discipline.  Illicit use of inhalants is a serious offense requiring mandatory separation regardless of time in service or grade.  Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civil conviction; however, the offense must be substantiated by a preponderance of evidence.  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 SPCM or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge based on misconduct for failing to obey Navy regulations regarding inhalants. 

The Applicant states his discharge was inequitable because his roommate’s charges were dismissed for similar misconduct, and he had requested a trial by court-martial but was not given one.  The record of evidence shows the roommate’s charges were dismissed by the Commanding Officer, and the Applicant did request a trial by court-martial when notified of his being charged for violation of the UCMJ, Article 92.  For the edification of the Applicant, the Commanding Officer, as the Convening Authority, makes the determination of whether or not to refer a matter to court-martial or impose NJP.  He may also dismiss charges.  The NDRB determined the Commanding Officer acted within his authority and the outcome of another case is not considered relevant to the Applicant’s case.  From several witness statements, the Applicant admitted to them that he had been huffing Dust Off, and the Administrative Separation Board, by a vote of 3 to 0, found the preponderance of the evidence supports the allegation giving the basis for separation by reason of misconduct – commission of a serious offense. 

The Applicant claims he was taking the medication, Xanax, and his initial statement was not valid and would be “thrown out” upon returning to Guam.  Also, during the administration board proceedings, the ARB had a different version of his statement 

than his legal counsel.  Neither the Applicant’s initial statement, his second statement nor the unsworn statement in the administrative board minutes make any mention that he was “under the influence” of Xanax.  Xanax is used to treat anxiety disorders, panic disorders, and anxiety caused by depression. The NDRB did find evidence the Applicant was diagnosed with an adjustment disorder with mixed disturbance of emotions and conduct in July 2006, and had been evaluated and treated for a mental health issue at Anderson AFB from April to May 2007.  However, the NDRB could not find any evidence, and the Applicant did not provide any additional documentation, to indicate Xanax causes a person to not be responsible for his conduct or that he should not be held accountable for his actions or statements.  The NDRB determined the Applicant’s first statement was valid and any differences between the statements should have been explained during the administrative board hearing. 

The Applicant states he waived his right to counsel because one was not available.  The evidence of record shows the Applicant did not waive his right to consult with qualified counsel and requested an administrative board.  Per the Officer in Charge, U.S. Naval Legal Service Office Pacific, Detachment Guam letter of 1910 Ser 00/045 of 26 July 2007, a Navy LCDR JAGC officer was detailed as the Applicant’s counsel and was present during the administrative separation board verified by the transcripts of the administrative separation proceedings.  

The Applicant states the new admiral assigned to Guam overturned the ARB’s decision.  For the edification of the Applicant, the new admiral was the Commander, U.S. Naval Forces Marianas, and is the Separation Authority for the region.  The Separation Authority makes the final determination on discharges based on recommendations from the commanding officers and ARBs.  In this case, the ARB voted 3-0, the preponderance of evidence supports separation by reason of misconduct – commission of a serious offense; voted 3-0, for suspended separation for 12 months; voted 3-0, recommended an Under Other Than Honorable separation; and voted 3-0, did not recommend transfer to the IRR.  The commanding officer concurred with most of the findings of the ARB but recommended to the Separation Authority separation of the Applicant without suspension for violating the Navy’s substance abuse policy.  The NDRB determined the Separation Authority acted within his authority.

The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the naval service.  Based upon available records, nothing indicates the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion the Applicant had committed a serious offense and separation from the Naval service was appropriate; an Under Other Than Honorable discharge was warranted.  

Issue 4:  ()  .  The Applicant states he is working part-time and is enrolled in school.  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.

While the NDRB applauds the Applicant for continuing his education, the NDRB determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of his discharge characterization.  To warrant an upgrade the Applicant’s post-service efforts needs to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  The NDRB determined the characterization of service received, Under Other Than Honorable Conditions, was an appropriate characterization considering the length of service and the UCMJ violation involved, and based on the limited post-service documentation provided an upgrade would be inappropriate.  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 evidence submitted by the Applicant, the Board found   

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.

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 violation of the UCMJ:  Article 92 (Failure to obey order or regulation). 

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 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 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 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 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 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