ex-EN3, USN

Current Discharge and Applicant’s Request

Application Received: 20090930
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)	19891204 - 19900212  	Active:	  	19900212 – 19931222  
                 					19931223 – 19970206  

Period of Service Under Review:
Date of Current Enlistment:  19970207	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20000915	Highest Rank/Rate:  EN2
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:  	AFQT:  25
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  3.0 (3)	OTA:  3.05

Awards and Decorations (per DD 214): , , (X2), (X2), NAVAL RES SEA SERVICE, NAVY BATTLE ‘E’

Periods of UA:  (2) – 15-17 AUG 98 (2 DAYS), NOV 98 (# DAYS NFIR)

NJP:  

- 19981013:	Article , 1 specification
	Specification 1: Unauthorized Absence, No further details found in record 
	Awarded:   (30 days)  Suspended:  

- 20000212:	Article  , 1 specification
	Specification 1: the Applicant, on active duty, did on board USS FREDERICK (LST 1184) on or about 20 Jan 2000, wrongfully use methamphetamine, a controlled substance  (1280 ng/ml ). 
	Awarded:  (2X Months) (45/45)   Suspended:  

- 20000315:	Article  , 1 specification
	Specification 1: On 01 Mar 2000 failed to obey a lawful order to wit not to use alcohol while on restriction, an order which it is his duty to obey, did use alcohol in the restricted barracks, Transient Personnel Unit
	Article  , 1 specification
	Specification 1: On 01 Mar 2000, was found drunk while on restriction at Transient Personnel Restriction Barracks
	Awarded:  (7 days pay) (14 days)  Suspended:   

SCM:  

SPCM:  

CC:    

Retention Warning Counseling:  

- 19990306:	For financial debt, failure to pay just obligations, financial irresponsibility.  Applicant advised failure to take corrective action may result in not only disciplinary action but in processing for administrative discharge by reason of unsuitability or misconduct.

Additional Applicable Counseling:

- 19980817:	For period of 48 hours of unauthorized absence.  Applicant surrendered onboard USS FREDERICK (LST 1184).  Applicant received Extra Military Instruction.   

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 900212 UNTIL 970206”

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 until 
11 February 2001, 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 violation of the UCMJ, Article 92, Failure to Obey a General Order or Regulation or Failure to Obey Other Orders and Article 112, Drunk on Duty.

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

Applicant’s Issues

1.	Nondecisional issues:  Applicant is seeking to avoid embarrassment and to gain assistance in pursuit of a job that will continue his time toward a retirement/pension.

2.	Decisional issues (EQUITY): Applicant seeks relief through an upgrade of characterization of his service to Honorable as a matter of equity: the characterization of service was based on a few, isolated incidents and that his record of service during his two preceding enlistments was honorable and recognized by the awarding of good conduct medals.

Decision

Date:  20100819		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 identified one decisional issue to the Board.  The Board completed a thorough review of the circumstances leading to  discharge, and the discharge process, to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s service record included  NAVPERS 1070/613 (Page 13) retention warning and   for  of the Uniform Code of Military Justice (UCMJ).  These violations included Article 86 (Unauthorized absence), Article 92 (Failure to obey a lawful order or regulation, to wit not to use alcohol while on restriction, an order which it was his duty to obey), Article 112 (Drunk on duty, found drunk while on restriction at the Transient Personnel Restriction Barracks), and Article 112a (Wrongful use, possession, etc of a controlled substance – Methamphetamine).  The Applicant’s record also contained pre-service drug use for an unspecified number of uses of marijuana prior to entering the Navy and a signed document attesting to fully understanding the U.S. Navy Drug and Alcohol Abuse Policies.

Based on the offenses committed by the Applicant,  command administratively processed  for separation.  Due to the Article 112a violation, processing for administrative separation was mandatory.  The NDRB reviewed the Applicant’s administrative separation package: When notified of administrative separation processing using the  procedure, the Applicant elected to exercise his right to consult with a qualified counsel, submit a written statement, and requested an administrative board hearing.

:  (Nondecisional) Applicant seeks relief to limit the negative connotations of his characterization of service and to enhance his opportunities for employment that will continue his time toward a retirement/pension.  The NDRB has no authority to upgrade a discharge for the sole purpose of removing a stigma or enhancing employment and educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

:  (Decisional) ()  .  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut that presumption, to include evidence submitted by the Applicant.  The Applicant submitted no additional evidence to rebut that presumption.  The Applicant contends his discharge be upgraded based on his record of service, which was honorable apart from an isolated period of misconduct.  Despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  Furthermore, an Under Other Than Honorable Conditions characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  Although the Applicant completed two honorable periods of enlistment, his current enlistment record of service was marred by a retention warning related to his financial debt and failure to pay just obligations and three non-judicial punishments for violations of UCMJ Articles 86, 92, 112, and 112a.  Violation of Articles 92, 112, and 112a are serious offenses, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial.  In the Applicant’s case, the command did not pursue a punitive discharge but instead opted for the more lenient administrative separation process with a characterization of service of General (Under Honorable Conditions).  The Board determined an upgrade would be inappropriate.

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, Automatic Upgrades, and Post-Service Conduct.

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