ex-BU2, USN

Current Discharge and Applicant’s Request

Application Received: 20091120
Characterization of Service Received: (per NAVPERS 1070/613) 
Narrative Reason for Discharge: (per NAVPERS 1070/613) 
Authority for Discharge: (per NAVPERS 1070/613) MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19770329 - 19770403  	Active:	 19770404 - 19830424 AD/IRR (HON)
				USNR 19921017 - 19981016 (HON; non-rec reenlist)

Period of Service Under Review:
Date of Current Enlistment:  20020308	Age at Enlistment:  44
Period of Enlistment:   Years   Extension
Date of Discharge:  20071020	Highest Rank/Rate:  BU1
Length of Service:   Year(s)     Month(s)   13 Day(s)
Education Level:  	AFQT:  39, 62
Evaluation Marks:	Performance:  3.8 (4, Inc)	Behavior:  3.5 (4, Inc)	OTA:  3.70 (4, Inc)

Awards and Decorations (per DD 214):	Rifle  Pistol  MSM MSM(4-USNR) (2)   
	AFRM (w/‘M’ device)

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20030626:	For being retained in the Selective Reserve, without an Inactive Duty Training Requirement, for unauthorized absence by reason of temporary work conflict/personal hardship (02 Jul-02 Sep 2003).

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “Rifle MM Pistol SS MERITORIOUS SERVICE MEDAL (1) NAVAL RESERVE MERITORIOUS SERVICE MEDAL(4) NAVY MARINE CORPS ACHIEVEMENT MEDAL (2) NATIONAL DEFENSE SERVICE MEDAL ARMED FORCES RESERVE MEDAL ('M' device) NAVY BATTLE E SEA SERVICE DEPLOYMENT RIBBON OVERSEAS SERVICE RIBBON COAST GUARD MERITORIOUS UNIT COMMENDATION”

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 11, effective 29 April 2005 until 
1 June 2008, 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 an upgrade to reenlist in the U.S. Armed Forces.
2.	Applicant contends reenlistment code assigned on his DD-214 was inequitable based on his record of honorable service.
3.	Applicant contends his personal stress led him to use illegal drugs.
4.	Applicant seeks upgrade based on his post-service achievements.

Decision

Date:  20110128		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 two 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 included  NAVPERS 1070/613 (Page 13) retention warning for unauthorized absence by reason of temporary work conflict/personal hardship from July to Sep 2003.  The record did not contain any commanding officer  or trials by court-martial.  The Applicant’s records did reflect three incidents involving illegal drugs.  Two of these incidents occurred during previous enlistments and included possession of hashish/marijuana in October 1977 and a positive test result drug lab message in July 1998.  The third incident occurred during the current enlistment and involved a positive drug test, dated 17 Aug 2007, for marijuana (32 ng/ml), which is a violation of the Uniform Code of Military Justice, Article 112a.  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 is one such offense that requires mandatory processing for administrative separation regardless of grade or time in service.  This usually results in an administrative discharge with an unfavorable characterization of service, at a minimum, or possible confinement up to two years and a Bad Conduct or Dishonorable discharge 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 an administrative discharge.  On 4 Sep 2007, the Applicant was notified, via registered mail, of administrative separation processing using the  procedure.  Since the Applicant did not sign and return his confirmation of receipt or his election of rights forms, the command presumed he waived his rights to an administrative separation board and proceeded with administrative discharge processing.  On 16 Oct 2007, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge for Misconduct (Drug Abuse), with an SPD code of RE-4.

Issues 1-2:  (Nondecisional)  The Applicant contends the reenlistment code assigned on hisDD-214 was inequitable based on his record of honorable service and seeks an upgrade to reenlist in the U.S. Armed Forces.  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.

:  (Decisional) ()  .  The Applicant contends his personal stress led him to use illegal drugs.  There is no evidence in the record, nor did the Applicant provide any evidence to indicate he attempted to use 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 even the Red Cross.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Nevertheless, all members of the Naval Service are expected to uphold the high standards of conduct as evidenced by the Navy Core Values of Honor, Courage, and Commitment in any environment or mission assigned.  Regardless if a Sailor’s previous record of service was noteworthy, use of illegal drugs is grounds for administrative separation at a minimum.  The Board found that the Applicant’s misconduct was willful, that he was responsible for his actions, and that he demonstrated he was unfit for further service.

When the service of a member of the Naval Service has been honest and faithful, it is appropriate to characterize that service as Honorable.  An Under Other Than Honorable Conditions discharge is warranted when a Sailor’s conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the high standards of conduct expected of all Sailors, especially one of his age and maturity, rank, and total length of service, and falls far short of what is required for an upgrade in the characterization of service.

Issue 4: (Decisional) ()  .  The Applicant seeks an upgrade based on his post-service achievements.  The Applicant provided documentation that included: character reference letters (10), employer letters of reference (2), Certificate of Commendation (1), Certificates of Appreciation (4), Letters of Appreciation (8), certification of non-involvement with civil authorities, and a personal resume.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  After careful examination and consideration of the documentary evidence submitted by the Applicant, the Board determined this issue did not provide a basis for which relief could be granted.  Relief denied.

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