ex-AZAN, USN

Current Discharge and Applicant’s Request

Application Received: 20091027
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630600 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19870325 - 19870712  	Active:		19870713 - 19910711  

Period of Service Under Review:
Date of Current Enlistment:  19910712	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19941101	Highest Rank/Rate:  AZ3
Length of Service:   Year(s)     Month(s)   10 Day(s)
Education Level:  	AFQT:  29
Evaluation Marks:	Performance:  3.8 (5)	Behavior:  3.7 (5)	OTA:  3.55

Awards and Decorations (per DD 214):	    (x3)
Periods of UA/CONF:  

NJP:  

- 19940329:	Article  (Wrongful possession of a firearm aboard military installation in violation of station regulation)
	Awarded:    Suspended:  

- 19940921:	Article  (Wrongful use, possession, etc of a controlled substance – to wit; possession of cocaine aboard a federal installation)
	Article 90 (Disobedience of a lawful order from superior commissioned officer)
	Awarded:     Suspended:  

SCM:  	SPCM:          CC:  

CIVILIAN CHARGES:

- Unknown:	Felony Charges in the State of Florida for drug trafficking and selling of a controlled substance - cocaine.  [Extracted from Commanding Officer’s message dated 941006.]

Retention Warning Counseling:  

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 870713 UNTIL 910711”
	  “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:		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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, 
Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 112(a).

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

Applicant’s Issues

1.	The Applicant did not identify any issues nor submit any statement on his Form DD-293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States.  

Decision

Date:  20110114	      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 introduced no decisional issues for consideration by the NDRB.  However, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant’s record of service reflects entry into the service without any waivers for enlistment eligibility.  The Applicant’s record of service reflects one honorable period of enlistment from July 1987 to July 1991, which included service in the Persian Gulf /Northern Arabian Gulf in support of Operation DESERT SHIELD and Operation DESERT STORM, qualifying the Applicant as a Gulf War veteran.    

Throughout his enlistments, the Applicant received one NAVPERS 1070/613 retention-counseling warning for his repeated failure of the Physical Fitness Assessment.  The Applicant’s period of enlistment under review included two nonjudicial punishments for violations of the Uniform Code of Military Justice, as follows: 

•	Article 90 (Willfully disobeying the lawful order of a superior commissioned officer)
•	Article 92 (Failure to obey a lawful order or regulation – to wit, wrongful possession of a firearm aboard a federal military installation in violation of station order)
•	Article 112 (a) (Wrongful use, possession, etc of controlled substances; to wit: cocaine).   

Additionally, at the time of the Applicant’s administrative separation from the Naval Service, he was pending felony charges in civilian court for trafficking and sale of controlled substances in violation of Florida State Statutes.     

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 proper order and discipline - violation of Article 112a (Drugs) meets this standard.  The Applicant acknowledged the U.S. Navy Drug Policy, in writing, on both March 24 and June 15, 1987.  The Applicant was fully aware that there was a zero-tolerance policy for drug abuse, and he acknowledged the consequences for violating it.  Violation of Article 112a is also an offense requiring mandatory processing for administrative separation, regardless of grade or time in service.  This usually results in an unfavorable characterization of service at discharge, 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.

In accordance with the Naval Military Personnel Manual, an individual may be processed for administrative separation for the commission of a serious offense when the Manual for Courts-Martial would authorize a punitive discharge for the same or a closely related offense.  In the Applicant’s case, violation of Articles 90, 92, and 112(a) each warrant a punitive discharge and confinement for up to 5 years, if adjudged as part of the sentence upon conviction by a special or general court-martial.  
  
Based on the offenses committed by the Applicant, he was recommended for administrative separation pursuant to both Article 3630600 (Misconduct - Commission of a Serious Offense) and Article 3630620(Misconduct - Drugs) of the Naval Military Personnel Manual.  When notified of the administrative separation processing using the board notification procedure, the Applicant waived his right to consult with qualified counsel, waived his right to submit a written statement, and did not request an administrative board hearing.  Furthermore, the Applicant stated in writing that he did not object to the involuntary separation action.

Based on the seriousness of the offenses, coupled with the pending civilian felony charges, the Command recommended separation of the Applicant with a primary basis of MISCONDUCT - Commission of a Serious Offense with an Under Other Than Honorable characterization of service at discharge.  The Separation Authority reviewed the evidence and the gravity of the charges and directed the Applicant be separated for MISCONDUCT - Commission of a Serious Offense and that he be separated Under Other Than Honorable Conditions.

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the narrative reason for discharge or the characterization of the Applicant’s service at discharge.  The NDRB’s vote was unanimous that an upgrade would not be appropriate and relief is not warranted; therefore, the character of the discharge and the reason for discharge shall not change.  

The NDRB did note administrative errors on the original DD Form 214:   “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 870713 UNTIL 910711” and  Narrative Reason for Separation, should read “MISCONDUCT.”  The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected, as appropriate, and a new DD-214 or a DD-215 (correction) be issued.  

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 is no longer eligible for a personal appearance hearing due to a period of fifteen years from the date of discharge having elapsed.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.  

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