ex-AD3, USNR-R

Current Discharge and Applicant’s Request

Application Received: 20100603
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:	NONE		Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19900823	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19961223	Highest Rank/Rate:  AD3
Length of Service:
	Inactive:	 Year(s)     Month(s)   01 Day(s)
	Active	 Year(s)     Month(s)   00 Day(s)
Education Level:  	AFQT:  Unreadable
Evaluation Marks:	Performance:  4.0 (5)	Behavior:  3.9 (5)	OTA:  3.96 (5)	  Active Duty
	Performance:  3.0 (2)	Behavior:  4.0 (2)	OTA:  3.22 (2)	  Selected Reserve

Awards and Decorations (per DD 214):	Rifle  Pistol   NACI 

Periods of UA/CONF:  

NJP:  		SCM:  		SPCM:  		CC:  

Retention Warning Counseling:  
- 19900925:	In spite of your defective enlistment and induction due to fraudulent entry into the Naval Service as evidenced by your failure to disclose your preservice involvement with civil authorities consisting of the following:  Jul 90, curfew violation. 

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, 
Article 3630620, SEPARATION OF ENLISTED PERSONNEL 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 contends he was denied representation after testing positive for marijuana use.
2.	Applicant contends he was threatened under duress to sign administrative separation paperwork.

Decision

Date:  20110825		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 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 fraudulent enlistment (25 Sep 1990).  There was no record of nonjudicial punishment (NJP) or trial by courts-martial.  The Applicant was charged with violation of the Uniform Code of Military Justice: Article  (Wrongful use, possession, etc of a controlled substance, marijuana, as evidenced by NAVDRUGLAB msg 220914Z Aug 96) and referred for NJP to be held during drill weekend, 7-8 Sep 1996, but the Applicant failed to report to drill and therefore the NJP was not held.  Based on the Article 112a violation, processing for administrative separation is mandatory per the Naval Military Personnel Manual.  When notified of administrative separation processing using the  procedure on 19 Sep 1996 (in person at Old Dominion University), the Applicant failed to complete and return his acknowledgment of rights form, thereby electing to waive his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  The Applicant was separated from the Navy Reserve on 23 Dec 1996.

:  (Decisional) ()  .  The Applicant contends he was denied representation after testing positive for marijuana use and that he was threatened under duress to sign administrative separation paperwork.  The NDRB is not an investigative body and allegations of legal impropriety or denial or rights should be made to the Naval Inspector General’s Office.  The NDRB, in reviewing the Applicant’s administrative separation package, noted that the Applicant participated in a command urinalysis on 4 Aug 1996, which resulted in a positive result for marijuana.  The Applicant was subsequently notified, on 29 Aug 1996, of pending NJP (scheduled for the 7-8 Sep 1996 drill weekend) and advised of his rights.  The Applicant failed to report for the 7-8 Sep 1996 drill period and therefore did not attend Captain’s Mast.  Unable to establish contact with the Applicant, the command Legal Officer made an in-person notification with the Applicant at Old Dominion University, on 19 Sep 1996, of pending administrative separation processing for Misconduct (Drug Abuse).  As of 29 Oct 1996, the Applicant had not returned his rights acknowledgment form indicating whether he elected to exercise or waive his rights to consult with a qualified counsel, submit written statements, and request an administrative separation board.  On 7 Nov 1996, the command submitted a request to the Bureau of Naval Personnel (BUPERS) for administrative separation due to misconduct (drug abuse).  On 6 Dec 1996, BUPERS directed the Applicant be separated as requested.  After comprehensive review of the records, the NDRB could find no evidence to support the Applicant’s claims.  In fact, evidence within the record suggests the Applicant’s command made every effort to afford him his rights, but he chose to ignore the official notification of pending separation processing.  With no other evidence to support the Applicant’s claim, 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 the 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