ex-SWCN, USN

Current Discharge and Applicant’s Request

Application Received: 20110120
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)	20040510 - 20050410  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050411	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070430	Highest Rank/Rate:  SWCN
Length of Service:   Year(s)     Month(s)   20 Day(s)
Education Level:  12	AFQT:  66
Evaluation Marks:	Performance:  3.3 (3)	Behavior:  2.0 (3)	OTA:  2.92

Awards and Decorations (per DD 214):	Rifle , , , , 

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	   CC:  	Retention Warning Counseling:  

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: “National Defense Service Medal, Iraqi Campaign Medal, Global War on Terrorism Expeditionary Medal, Armed Forces Service Medal, Humanitarian Service Medal, Sea Service Deployment Ribbon, Rifle Sharpshooter Ribbon”

 Narrative Reason for Separation, should read: “MISCONDUCT (SERIOUS OFFENSE)”

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 11, effective 26 April 2005 until 11 June 2008, Article 1910-142, SEPARATION 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 92.  

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

Applicant’s Issues

1.	Nondecisional issues: (1) The Applicant seeks an upgrade in characterization of service at discharge in order to enhance eligibility for enlistment into another branch of the Armed Services.  (2) The Applicant contends that he was detained improperly and illegally in Iraq while the allegations of misconduct were being investigated.

2.	Decisional issues: (1) (Propriety) The Applicant contends that he was unfairly separated without any physical proof of wrongdoing, and the separation process was unfairly delayed and dragged out to punish him mentally and emotionally.  (2) (Equity) The Applicant contends that his discharge was inequitable in that other boards for the same event had different outcomes.  (3) (Equity) The Applicant contends that his deployed enlisted chain of command was out to get him and unfairly influenced the administrative discharge board members.

Decision

Date:  20110311		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 numerous issues for the NDRB’s review and consideration.  The NDRB conducted 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 both equity and propriety.

The Applicant entered military service in the delayed entry program at age 17, with a single waiver to enlistment standards for tattoos.  He entered the active duty ranks at age 18 with an enlistment guarantee of training as a constructionman steelworker.  The Applicant’s official record of service included no NAVPERS 1070/613 retention-counseling warnings and no administrative nonjudicial punishments or punitive punishments as adjudged by a trial at court-martial.  The Applicant’s service record documents that he is a combat veteran, having conducted combat support operations in support of Operation IRAQI FREEDOM while assigned to the Naval Provisional Detainee Battalion, Fort Suse, Iraq.  The Applicant’s service record reflects his acknowledgment and understanding - in writing - of the Navy’s Zero Tolerance Policy on Illegal Drug Use, signed upon entering the delayed entry program on 10 May 2004.  In addition, the Applicant was counseled again - in writing - regarding the Navy’s Zero Tolerance Policy for Drugs and Alcohol Abuse on 22 September 2005.

On 28 May 2006, the Applicant deployed to Iraq as part of a composited Task Force conducting detention operations aboard a forward operating base.  On 08 August 2006, the Applicant was alleged to have been participating in the illegal “huffing” of canned aerosol in violation of Secretary of the Navy Instruction (SECNAVINST) 5300.28D (MILITARY SUBSTANCE ABUSE PREVENTION AND CONTROL).  A command investigation was conducted to inquire into the circumstances and facts related to the alleged violation of lawful orders regarding members of the deployed task force.  On 09 August 2006, the Applicant was advised of formal charges being preferred against him to the Commander, Naval Provisional Detainee Battalion for violation of Article 92 of the Uniform Code of Military Justice (Failure to Obey Order or Regulation) and Article 134 (General Article).  On 10 August 2006, the Applicant’s parent command was notified of the investigation results and the charges preferred against the Applicant.  Based on the results of the Command Investigation, the Applicant was redeployed out of theater to his parent command located in Okinawa, Japan.  The evidence of record does not indicate if the operational command in Iraq took any action on preferred charges against the Applicant.

In accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN), processing for separation for “huffing” is mandatory.  The Applicant was notified of the Commanding Officer’s recommendation for administrative separation in writing on 23 September 2006; he acknowledged receipt of notification and his understanding and election of his rights on 26 September 2006.  The Applicant was advised that the basis for separation was Misconduct (Serious Offense) for mandatory processing for illicit use of inhalants in violation of SECNAVINST 5300.28D and that the least favorable characterization of service, if discharged, could be Under Other Than Honorable Conditions.  The Applicant elected to exercise his right to consult with qualified legal counsel and requested that an administrative discharge board be convened to hear his case.  The Applicant waived his right to submit a written statement to the Separation Authority.

On 01 December 2006, an administrative discharge board was convened for the purpose of considering the pertinent facts relating to the case of the Applicant.  By a vote of 3-0, the administrative discharge board determined that a preponderance of the evidence supported a finding that the Applicant had committed the misconduct as specified in the notice.  Additionally, by a vote of 3-0, the board recommended separation and further recommended that the characterization of service at discharge be Under Other Than Honorable Conditions.  The board had no dissenting opinion in this case.

On 26 March 2007, after receiving and reviewing the typed record of proceedings of the administrative board, the Applicant’s Commanding Officer forwarded the findings of the board to the Separation Authority via the chain of command as required by Article 1910-704 of the MILPERSMAN.  The Commanding Officer agreed with the board’s findings and recommendations and strongly recommended that the Applicant be discharged and the characterization of service at discharge be Under Other Than Honorable Conditions.  The next higher authority in the chain of command reviewed the record of proceedings of the administrative discharge board, concurring with the findings and recommendations, and endorsed the package, as such, on 03 April 2007.

On 18 April 2007, the General Court-Martial Convening Authority took action on the case as the specified Separation Authority.  After reviewing the record of proceedings of the administrative discharge board, and the recommendations of the chain of command, he approved the recommendation for discharge and designated that the basis for separation would be Misconduct (Serious Offense).  The Separation Authority determined that the evidence of record supported the basis for discharge and that the characterization of service, Under Other Than Honorable Conditions, was warranted.  On 30 April 2007, the Applicant was discharged with an Under Other Than Honorable Conditions characterization of service for Misconduct (Serious Offense); he was further advised by the assignment of a reentry code of RE-4 that he was not recommended for reenlistment or reentry in the Armed Services.

As requested by the parents of the Applicant, the General Court-Martial Convening Authority conducted a second review of the discharge action.  On 04 May 2007, he notified them in writing that he had determined that the preponderance of the evidence was sufficient to support the board’s findings and that separation under other than honorable conditions was warranted.  On 14 June 2007, the General Court-Martial Convening Authority again advised the Applicant and his parents that he found no reason to question the quality of evidence against the Applicant, the sufficiency of his administrative board proceedings, or the ultimate result in his case.  Furthermore, he advised the Applicant and his parents that their allegations of misconduct by other members of the Navy would be appropriately investigated and addressed.

Nondecisional Issues:

(1) The Applicant seeks an upgrade in characterization of service at discharge in order to enhance eligibility for enlistment into another branch of service.  The NDRB has no authority to upgrade a discharge characterization of service for the sole purpose of enhancing reenlistment opportunities; regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  A request for a reenlistment waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  Additionally, the NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  The Applicant may petition the BCNR using DD Form 149.  When requesting a change, the Applicant should provide as much documentation as possible regarding his justification for a change.  The BCNR’s address is:  Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100.  Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  

(2) The Applicant contends he was detained improperly and illegally while allegations of his misconduct were being investigated in Iraq.  The NDRB is not an investigative body and any allegations of misconduct or wrongdoing should be made to an appropriate law enforcement organization or the Naval Inspector General’s Office for proper investigation and action.

:  (Decisional) ()  .  The Applicant contends that he was unfairly separated without any physical proof of wrongdoing, and the separation process was unfairly delayed and dragged out in order to further punish him mentally and emotionally.  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.  Article 1910-142 of the MILPERSMAN specifies that service members may be separated based on the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation, and that the offense would warrant a punitive discharge if adjudicated at trial by court-martial.  In accordance with the Manual for Courts-Martial, violation of Article 92 (Failure to obey a lawful order) of the UCMJ warrants a punitive discharge and confinement for up to 2 years, if adjudicated at trial by court-martial; thus, violation of Article 92 meets the requirement of the MILPERSMAN for consideration as a serious offense.  Moreover, processing for separation by Misconduct (Serious Offense) is mandatory for the unlawful use of controlled substance analogues (designer drugs), natural substances (e.g., fungi, excretions), chemicals (e.g., chemicals wrongfully used as inhalants), propellants and/or a prescribed, or over-the-counter drug, or pharmaceutical compounds with the intent to induce intoxication, excitement, or stupefaction of the central nervous system.  Administrative separation for the commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence.

The Commanding Officer determined that the Applicant was inhaling Dust-Off chemical compounds (huffing) with the specific intent to induce intoxication, excitement, or stupefaction of the central nervous system in direct violation of the Secretary of the Navy Instruction.  The Commanding Officer made this determination in consideration of the Command Investigation conducted in theater when the allegations of misconduct arose.  As the Commanding Officer believed that the Command Investigation established the requirement for a preponderance of the evidence, he processed the Applicant for mandatory separation - as required by Article 1910-142 of the MILPERSMAN.  The Applicant requested an administrative discharge board be convened in order for him to present evidence on his behalf.  After hearing both the government’s case and the Applicant’s case, and reviewing the evidence of record, the administrative discharge board determined that, by a vote of 3-0, a preponderance of the evidence presented did establish the specified misconduct and that separation was warranted.  The administrative discharge board considered the Command Investigation conducted in Iraq, a government report on the trend of “huffing” and the abuse of inhalants, testimony from witnesses and from statements of others involved in the allegations of misconduct, and testimony from the Applicant’s enlisted leadership.  The administrative discharge board cited the eyewitness testimony and both the written and verbal testimony of the chief petty officer who was administratively in charge of the deployed detachment as key evidence in their determination.

The Applicant was alleged to have violated orders in Iraq.  He was returned to his parent command in Okinawa, Japan in order for them to take administrative or judicial actions.  The Command opted to pursue administrative separation vice judicial proceedings.  When notified of the proposed administrative separation action in September 2006, the Applicant elected to exercise his right to an administrative discharge board.  The administrative discharge board is a deliberate process, providing for both the respondent and the government to develop, prepare, and present a case.  Once complete, the Command cannot move forward on the determination of the board until the record of proceedings is typed, reviewed, certified, and returned to the convening authority.  The board was convened on 01 December 2006, the record of proceedings was submitted to the convening authority on 08 March 2007.  The convening authority acted on the findings and recommendations on 26 March 2007.  After review and endorsement by the intervening chain of command and the Staff Judge Advocate, the Separation Authority took action in the Applicant’s case on 18 April 2007.  

In accordance with Navy Regulations, the unlawful use of controlled substance analogues (designer drugs), natural substances (e.g., fungi, excretions), chemicals (e.g., chemicals wrongfully used as inhalants), propellants, and/or a prescribed or over-the-counter drug or pharmaceutical compound, with the intent to induce intoxication, excitement, or stupefaction of the central nervous system, is prohibited.  Furthermore, this regulation subjects the violator to punitive action under the UCMJ or adverse administrative action, or both.  The Applicant attended an Alcohol and Drug Awareness class and was briefed on the specifics of this regulation and acknowledged his understanding of it on 22 September 2005, thereby establishing the factual basis of his awareness of the order.

Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based on Misconduct (Serious Offense) as the basis for the discharge action.  Moreover, the NDRB determined that the command did establish the specified misconduct by a preponderance of the evidence.  As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge.  Accordingly, relief based on propriety is denied.
         
:  (Decisional) ()  .  The Applicant contends that his discharge was inequitable in that other boards for the same event had different outcomes.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  The results of each administrative discharge board are determined by the individual members of the board based on the evidence and testimony presented by both the government and the defense.  Each board hearing can differ based on the background and experiences of the respondent, his overall record of service, and the strength and conviction of the testimony both for and against the respondent.  As such, the results of each board, though addressing similar offenses, can yield differing results.

The Applicant’s discharge was administrative in nature, not punitive.  Although his discharge was the result of misconduct, it was not part of the punishment awarded at either a court-martial or nonjudicial punishment.  Furthermore, as discussed in Decisional Issue 1, a violation of Article 92 could have resulted in punishment substantially more harsh than the discharge the Applicant received.  Regarding characterization of service at discharge, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  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.  In consideration of the established misconduct of record, the NDRB determined that the Applicant had engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  

Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense and that separation from the Naval Service was appropriate.  Coupled with the unique circumstances of the misconduct occurring in a combat environment where others’ lives were placed at risk, an Under Other Than Honorable Conditions characterization of service at discharge was warranted.  Relief denied.

:  (Decisional) (Propriety/)  .  The Applicant contends that the deployed task force enlisted chain of command was out to get him and that they unfairly influenced the administrative discharge board members.  The Applicant consulted with counsel, requested a hearing before an administrative discharge board, and did not include a sworn or unsworn statement of his own.  If the Applicant felt that he was being mischaracterized or that his service was not properly being presented, it was his obligation to contest those actions at the time they were made through his defense counsel.  During the administrative discharge board, the Applicant had the opportunity to mount a defense against all charges and characterizations levied against him.  The Applicant and his counsel had the opportunity to challenge the membership of the board during voir dire; they did not.  The Applicant did not challenge the make-up of the board, they did not challenge any member for prior awareness of the case, and the Applicant chose not to provide either a sworn or unsworn statement or any testimony to the members.  The Applicant submitted no evidence to support his contention of unfair influence and did not mount any challenge during the board proceedings; therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs.  The record contained no evidence of any wrongdoing by the Applicant’s Commanding Officer or anyone else in the discharge process in the absence of persuasive evidence to the contrary.  The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable as issued.  As such, relief is not warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, the administrative discharge board proceedings, and the discharge process, the Board found that the discharge was both proper and equitable as issued.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS 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