ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20090311
Characterization of Service Received:   OTHER THAN HONORABLE
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)	20010831 - 20011015  	Active:	

Period of Service Under Review:
Date of Enlistment:  20011016	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20030926	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   10 Day(s)
Education Level:  	AFQT:  57
Evaluation Marks:	Performance:  3.0 (1)	Behavior:  3.0 (1)	OTA:  3.00

Awards and Decorations (per DD 214):	Rifle  Pistol   

Periods of UA/CONF:  	NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “MISCONDUCT”

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. Takes full responsibility for his actions.
2. Has committed himself to maturing as a citizen as evidenced by his post-service conduct. 

Decision

Date:  20090810		Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge and/or characterization of service, if such a change is warranted.  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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete service record (no record of disciplinary actions taken, urinalysis results or administrative separation package).  Per the Applicant’s DD Form 214, he was discharged due to the abuse of a controlled substance with a characterization of Other Than Honorable after waiving his right to an administrative board.  The Applicant also had a pre-service drug waiver for using marijuana  prior to entering the Navy.

:  (Decisional)()  .  In requesting an upgrade to General (Under Honorable Conditions), the Applicant admits to making a mistake and takes full responsibility for his actions.  A General (Under Honorable Conditions) is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.  An Under Other Than Honorable Conditions discharge is appropriate when the basis for separation is commission or omission of an act that constitutes a significant departure from the conduct expected from a service member.  After reviewing the evidence of record and additional matters submitted by the Applicant, the Board determined the Applicant’s misconduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was appropriate in light of the seriousness of the offense committed and the absence of mitigating circumstances.  

:  (Decisional) ()  .  The Applicant contends since being discharged he has committed himself to maturing as a citizen and has volunteered in many charitable organizations, obtained two national certifications in the fitness field, attended church services and is currently enrolled in an engineering program.  The Applicant provided a list of courses he enrolled in for Spring 2009 and character references from friends and the director of a fitness center where he volunteered as a youth counselor for 2 years.  While the Board applauds the Applicant’s post-service efforts, community service, career progression, and other post-service activities must be considerable and thoroughly documented to warrant discharge upgrade consideration.  The Board determined the evidence of post-service conduct was not sufficient enough 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 substantiate or relate 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 the 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, the Applicant is cautioned that even considerable post-service conduct alone does not guarantee an upgrade.  The Applicant is directed to the Addendum, specifically the paragraph titled Post-Service Conduct, for additional information regarding this issue.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and  record entries, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

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, specifically the paragraphs titled Additional Reviews and Automatic Upgrades.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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.

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 Association of Service Disable 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 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 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