ex-EMFN, USN

Current Discharge and Applicant’s Request
Application Received: 20091022
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)	20010629 - 20020619  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20020620	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040106	Highest Rank/Rate:  EM3
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  96
Evaluation Marks:	Performance:  3.0 (4)	Behavior:  2.0 (4)	OTA:  2.60 (4)
Awards and Decorations (per DD 214):	NONE

Periods of UA:  UA 20031111 to 20031201 (20 days)

NJP:  

- 20031209:	Article  (UA, 20031111 to 20031201)
	Article  (Failure to obey order, regulation)
		Specification 1: Exceeded 300 mile out of bounds limit
		Specification 2: Underage drinking
		Specification 3: Failed to report as ordered
	Article  (Wrongful use, possession, etc of controlled substance)
		Specification 1: Wrongful possession of marijuana 20031118-20031124
		Specification 2: Wrongful use of marijuana 20031118-20031124
	Awarded:      Suspended:   

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:		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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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.	Applicant seeks upgrade to obtain commission as an officer in the United States Marine Corps.
2.	Applicant contends his misconduct was an isolated incident in 17 months of total service.
3.	Applicant contends his post-service conduct and achievements represent his true character.

Decision

Date:  20101110		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 three decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service did not reflect any NAVPERS 1070/613 (Page 13) warnings or counseling but did contain   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 11 Nov-03 Dec 2003); Article 92 (Failure to obey order, regulation, 3 specifications, exceeded 300 mile out of bounds limit, underage drinking, failed to report as ordered); and Article 112a (Wrongful use, possession, etc. of controlled substance, 2 specifications, wrongful use and wrongful possession of marijuana, 18-24 Nov 2003).  Based on the Article 112a violation, processing for administrative separation is mandatory.  This usually results in an unfavorable characterization of discharge, at a minimum, or a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.

:  (Nondecisional)  The Applicant seeks an upgrade to obtain a commission as an officer in the United States Marine Corps.  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 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 or through the officer selection officer.

:  (Decisional) ()  .  The Applicant contends his misconduct was an isolated incident in 17 months of total service.  Despite a service member’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; violation of Article 112a meets this standard.  Upon enlistment, the Applicant signed the USN Drug Policy acknowledging his understanding of the Navy’s zero-tolerance policy for illegal drug abuse and the consequences of violating the policy.  Additionally, he signed a NAVPERS 1070/613 (Page 13) on 29 June 2001 acknowledging the expectations and responsibilities, with regards to performance, character, and drug abuse, of Sailors selected to enter the highly competitive and selective job specialty rating of Nuclear Power.  While he may feel his youth and immaturity were the underlying causes of his conformance to peer pressure, which led to his misconduct, the record clearly reflects his misconduct was willful and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  When a  service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a service member commits or omits an act that constitutes a significant departure from the conduct expected from a Sailor.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors and falls far short of what is required for an upgrade in the characterization of service.

:  (Decisional) ()  .  The Applicant contends his post-service conduct and achievements represent his true character.  The Applicant provided documentation that included: a personal statement; letters of recommendation from his Senator and Congressman; three character reference letters from Friends University staff members and a United States Marine Corps First Lieutenant; and college transcripts from Friends University.  Although not submitted, additional documentation could have included: evidence of a drug-free life style; evidence of financial stability; certification of non-involvement with civil authorities; and marriage or child birth certificates (as applicable).  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  However, there is no law or regulation that 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.

The NDRB commends the Applicant on his post-service conduct.  His completion of a bachelor of science degree in mathematics, performance in university student government, active community service, and character reference letters attest to his desire and determination to turn his life around and become a productive member of society.  Notwithstanding, he volunteered to serve six years in the highly select and competitive field of nuclear power, a very challenging field that demands the utmost in reliability, responsibility, and character in those personnel selected to serve.  The Applicant was well-aware of the expectations of his chosen specialty.  After enrollment in more than 71 weeks of advanced job specialty schooling, the Applicant chose to shirk his responsibilities to the Navy and violate the UCMJ by leaving his place of duty for approximately 20 days and by his possession/consumption of marijuana.  Approximately 1 month later, the Applicant was administratively separated from the Navy after serving 18 months, of his 72-month contract, as a student in various schools without having made it to active service in the fleet.  After considering all the available facts and circumstances, to include the evidence submitted by the Applicant, the Board found that the post-service conduct and achievements of the Applicant, though laudable, do not overcome the severity of his misconduct nor lend credence that his discharge was improper or inequitable.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and administrative 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