ex-SK3, USN

Current Discharge and Applicant’s Request

Application Received: 20100727
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)	19900507 - 19900919  	Active:	 19900920 - 19941013 HON

Period of Service Under Review:
Date of Current Enlistment:  19941014	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19981020	Highest Rank/Rate:  SK2
Length of Service:  4 Years   00  Months   07 Days
Education Level:  	AFQT:  64
Evaluation Marks:	Performance:  4.0 (3)	Behavior:  4.0 (3)	OTA:  3.57

Awards and Decorations (per DD 214):	MUC GCM NDSM SSDR (2) SWASM (2) NAVY”E” (2) AFEM

Periods of CONF:  

NJP:  NONE	SPCM:  	CC:  		Retention Warning Counseling:  NONE

SCM:  1
- 19981016:	Article 85 (Deserter)
	Article 87 (Missing movement)
	Article 112a (Wrongful use of controlled substance)
	Sentence: FOP RESTR

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19900920 TO 19941013”
  “UNDER OTHER THAN HONORABLE CONDITIONS”

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 18, effective 12 December 1997 until
19 May 1999, 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

Nondecisional Issues:  The Applicant seeks an upgrade in the characterization of his service in order to be eligible for Veterans Affairs benefit programs.

Decisional Issues: The Applicant contends that his discharge characterization of service was inequitable in that (1) his eight years of honorable service outweighed his isolated misconduct of record, and (2) the Applicant believes his post-service conduct is worthy of consideration and shows that the misconduct of record was an aberration in his performance and conduct.

Decision

Date:  20110929	         	Location:  Washington D.C.	Representation:  NONE

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 NDRB 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 related to the propriety of equity of his discharge action for the NDRB’s consideration.  Additionally, in reviewing the Applicant’s issue, 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 enlistment record reflects entry into military service at age 23, with numerous waivers to enlistment standards due to pre-service drug use (marijuana and cocaine) and minor police involvement.  The Applicant enlisted on a contract for three years (with a 24 month extension) of active duty military service.  The Applicant acknowledged his complete understanding of the Navy Policy Concerning the Illegal Use of Drugs, in writing, as a condition of his enlistment process on 03 May 1990.  The Applicant completed that enlistment period honorably and was immediately reenlisted on a second three-year contract on 14 October 1994.  The Applicant’s record of service does not reflect any NAVPERS 1070/613 retention-counseling warnings during his current period of enlistment, but it does contain one summary court-martial for violation of the Uniform Code of Military Justice (UCMJ): specifically, Article 85 (Desertion), Article 87 (Missing movement), and Article 112(a) (Wrongful use, possession, etc of a controlled substance).  Based on the Article 112(a) violation, processing for administrative separation from the service is mandatory.  The NDRB was unable to review the Applicant’s entire discharge package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN); as such, the presumption of regularity in governmental affairs was applied by the Board.  Based on the Applicant’s DD Form 214 separation code, he waived his right to an administrative discharge hearing board.  The Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reasons for discharge.  He reviewed the chain of command’s recommendation for an Under Other Than Honorable Conditions characterization of service and determined that it was warranted.  On 20 October 1998, the Applicant was discharged due to Misconduct (Drug Abuse) and was assigned an RE-4 re-entry code (not recommended for reenlistment).

(Nondecisional Issue) The Applicant seeks an upgrade in the characterization of his service in order to facilitate access to Department of Veterans Affairs (VA) benefit programs.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefit programs.  Regulations specifically limit the NDRB’s review to a determination of the propriety and equity of a discharge.  Additionally, 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 in civilian life subsequent to leaving the service.

(Decisional Issues) ()  .  The Applicant contends that his discharge characterization of service was inequitable in that (1) his eight years of honorable service outweighed his isolated misconduct of record, and (2) the Applicant believes his post-service conduct is worthy of consideration.

Propriety - The Applicant was separated administratively in accordance with Article 1910-146 of the MILPERSMAN - Misconduct (Drug Abuse).  The Applicant does not contend that he did not use the illegal drugs.  Processing for administrative separation for illegal drug use was mandatory by service policy.  The Applicant did not contest the separation action and waived his right to defend himself and present his case for retention at an administrative board hearing.  Based on the documentation of record, the NDRB determined that the separation was proper and the narrative reason for separation was accurate.  No relief based on propriety is warranted.

Decisional Issue 1 (Equity) - The Applicant contends that his misconduct of record was an isolated incident in eight years of honorable service.  Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112(a) is one such offense requiring mandatory processing for administrative separation, regardless of grade, performance, or time in service.  This action usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant failed a urinalysis test; his results identified the presence of illegal drugs in his system.  The command did not refer the Applicant for adjudication at a punitive court-martial but opted instead for a nonpunitive summary court-martial and administrative discharge.

Decisional Issue 2 (Equity) - The NDRB is authorized to consider outstanding post-service factors in the re-characterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant provided letters of reference and documentation regarding his current employment, training, substance abuse rehabilitation, family and personal status, and community and church service.  The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.  The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief.  Relief denied.

Characterization of service at discharge is the recognition of a Sailor’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  Based on the evidence of record, the NDRB determined that the willful and deliberate violation of Articles 85, 87, and 112 (a) by the Applicant constituted conduct involving one or more acts or omission that did reflect a significant departure from the conduct expected and required of members of the Naval Service.  The Applicant’s misconduct did outweigh the positive aspects of his military record; as such, the awarded characterization was appropriate, was equitable, and was consistent with the characterization of discharge normally received by others in similar circumstances.  Accordingly, an upgrade would be inappropriate.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service and medical record entries, and discharge process, the NDRB determined that   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 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