ex-EN3, USN

Current Discharge and Applicant’s Request

Application Received: 20110105
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)	20010529 - 20010619  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20010620	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060330	Highest Rank/Rate:  EN2
Length of Service:   Years     Months   11 Days
Education Level:  	AFQT:  69
Evaluation Marks:	Performance:  3.6 (5)	Behavior:  3.8 (5)	OTA:  3.42

Awards and Decorations (per DD 214):	Rifle EX, Pistol EX, NMCAM (2), NDSM, NUC, SSDR, GWOTEM, GWOTSM, NAVY “E”, ESWS

Periods of UA/CONF:  

NJP:  1

- 20060124:	Article 112a (Wrongful use, possession, etc., of a controlled substance)
	Awarded: RIR, FOP, RESTR, EPD        Suspended:  RESTR

SCM:  NONE	SPCM:  	CC:   	Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “MISCONDUCT (DRUG ABUSE)”

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:	

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

Applicant’s Issues

Decisional issues: The Applicant contends his characterization of service at discharge was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career.  He also contends that his post-service conduct is worthy of consideration for an upgrade.

Decision

Date:  20120209	             	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 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 one decisional issue related to the equity of his characterization of service at discharge for the NDRB’s consideration; additionally, the NDRB completed a thorough review of the circumstances that led to the discharge action, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant entered military service at age 20 on a four year enlistment with a 24 month extension for guaranteed training as an Engineman with a Navy College Fund bonus.  The Applicant’s enlistment record reflects entry into the military service in accordance with a waiver to enlistment and induction standards resulting from a pre-service chart “B” offense for being a minor in possession of alcohol and assigned to one year of probation.  The Applicant acknowledged his complete understanding of the Navy Policy Concerning Illegal Use of Drugs as a function of his enlistment process prior to entry into the service.  The Applicant completed four years and nine months of his six-year enlistment obligation before being discharged.

The Applicant’s record of service did not include any NAVPERS 1070/613 retention-counseling warning, but did reflect one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): specifically, Article 112(a) (Wrongful use, possession, etc of a controlled substance - wrongful use of marijuana).  In the absence of a complete discharge package in the service record, the NDRB applied the presumption of regularity of governmental affairs in that the Applicant was properly notified and was afforded all rights as required by the Naval Military Personnel Manual (MILPERSMAN) for administrative separation due to misconduct.  The use of marijuana is a violation of Article 112(a) of the UCMJ.  Based on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory by acknowledged service policy.

The NDRB was unable to verify the Applicant’s notification and election of rights in conjunction with the discharge action; however, an administrative board notification procedure is required for all separation actions in which an Under Other Than Honorable Conditions characterization of service at discharge is being proposed.  As such, the Applicant was afforded a right to consult with a legal defense counsel and was afforded the opportunity to present his defense of the alleged misconduct (drug abuse) and his case for retention in service and characterization of that service to an administrative hearing board.  The Applicant’s DD Form 214 documents a separation code of “HKK,” specifying that the Applicant elected to waive this right to an administrative discharge hearing board.  As a function of the discharge process, a Staff Judge Advocate (SJA) reviewed the separation package for legal justification.  The Separation Authority reviewed the recommendations of the SJA and the chain of command and determined that the evidence of record was sufficient in law and fact to support the proposed reason for discharge.  As such, the Separation Authority directed the Applicant’s discharge Under Other Than Honorable Conditions pursuant to Article 1910-146 of the MILPERSMAN - Misconduct (Drug Abuse); he further directed that the Applicant be assigned an RE-4 re-entry code (not recommended for reenlistment).

Decisional Issues (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his characterization of service was inequitable; his misconduct was an isolated incident in what was an otherwise outstanding military career.  

Propriety - 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 of the service.  Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service.  Moreover, this action usually results in an unfavorable characterization of service at 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’s command did not pursue a punitive discharge, but instead opted for the more lenient nonjudicial punishment and administrative discharge process.  The Applicant was found guilty based on a preponderance of the evidence; he did not request a hearing before an administrative discharge hearing board.  As such, the Separation Authority approved the command’s recommendation for separation and directed the Applicant be discharged, under other than honorable conditions.  The NDRB determined that the separation was proper and the narrative reason for separation was accurate.  Relief based on propriety is denied.  

Equity - The NDRB recognizes that serving in the military is challenging.  Most service members, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those service members, commanders and Separation Authorities are directed to ensure that undeserving Sailors and Marines receive no higher characterization than is due.  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 of the service.  The characterization of service at discharge is 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.  However, an Under Other Than Honorable Conditions characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from that conduct expected of members of the Naval Service.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected acts or omissions that constituted a significant departure from that conduct expected of a service member - the Applicant’s illegal drug use represented a specific act that did constitute a significant departure from the conduct expected of a Sailor.  

The Applicant stated that he is co-owner of a fitness facility and has started his own business.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.

By a vote of 5-0, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and still remains consistent with the characterization of discharge given others in similar circumstances.  Accordingly, relief as requested is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB determined that   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain  (DRUG ABUSE).  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.

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.

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