ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20090325
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)	20060506 - 20060910  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060911	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080321	Highest Rank/Rate:  MASN
Length of Service:   Year(s)     Month(s)   11 Day(s)
Education Level:  	AFQT:  35
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  2.6 (3)	OTA:  2.94

Awards and Decorations (per DD 214):	Rifle  Pistol   

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

CC:  

Retention Warning Counseling:  

- 20070228:	For your Captain’s Mast for the violation of UCMJ Article 112a.  

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/To Representation:		From/To Congress member:	

                    Other Documentation:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until Present, 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.

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

Applicant’s Issues

1.	Isolated incident with no other adverse action in 16 months of service.
2.	Mentally and physically exhausted and ill due to difficulties within the command.
3. 	Seeking post-service conduct consideration.

Decision

Date:  20100107		Location:  Washington D.C.	Representation:  

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

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 included  NAVPERS 1070/613 (Page 13) warning for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use of a controlled substance). Based on the offense committed by the Applicant, processing for administrative separation was mandatory.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with qualified counsel and submit a written statement.  Per the Applicant’s DD Form 214, he was discharged due to misconduct (drug abuse) and given a separation code of “HKK” indicating that he waived his right to an administrative board.  The presumption of regularity of governmental affairs was applied in the absence of an administrative separation package.

:  (Decisional) (Equity) RELIEF NOT WARRANTED.  In seeking an upgrade to General (Under Honorable Conditions) or uncharacterized , the Applicant contends his discharge was inequitable because it was reflective of one isolated experience with no other adverse action in his 16 months of service, and that “illegal drugs is not a reflection of my lifestyle or of a lack of respect for the U.S. Navy.”  Despite a sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline.  The Applicant’s service record reflects that he was administratively separated for illegal drug use.  The Board determined an upgrade would be inappropriate based on the seriousness of the Applicant’s misconduct and the lack of mitigating evidence.  

:  (Decisional) ()  .  The Applicant also contends his during the six months prior to his discharge he became increasingly mentally and physically exhausted and ill because of the difficulties he had within his command.  There is no evidence in either his service or health  records, nor provided by the Applicant to prove that he was suffering from a mental or physical condition and that such condition impaired his ability to appreciate the wrongfulness of his decision to use a controlled substance.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 

Additionally, there is no evidence in the record or provided by the Applicant to prove that he attempted to utilize the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, medical or mental health professionals, Navy Relief Society, family advocacy programs, or the Red Cross.  Based on a review of the evidence of record and statement of the Applicant, the NDRB determined there was sufficient evidence to separate the Applicant for misconduct due to due drug abuse.  The Applicant’s statement regarding his mental and physical conditions were without supporting documentation and were insufficient to justify an upgrade to Honorable.  

:  (Decisional) ()  .  The Application also indicated that being separated from the Navy was an awakening experience for him and that he is enrolling in college to complete his educational requirements with hopes of gaining a position in law enforcement.  The Applicant failed to provide any documentary evidence of achievement for post-service consideration.  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.  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.

The Board determined the Applicant’s statement regarding post-service conduct without documentation to support the same, was not sufficient 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 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, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant should be aware that post-service conduct 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 .

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. 

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.  

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