ex-HR, USN

Current Discharge and Applicant’s Request

Application Received: 20130116
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)	19851015 - 19851020  	Active:	 19851021 – 19910214 HON
				USN 19911015 – 19940313 HON

Period of Service Under Review:
Date of Current Enlistment:  19940314	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19990823	Highest Rank/Rate:  HM2
Length of Service:   Year(s)     Month(s)   09 Day(s)
Education Level:  	AFQT:  75
Evaluation Marks:	Performance:  2.1 (2)	Behavior:  2.1 (2)	OTA:  2.60

Awards and Decorations (per DD 214):	Rifle  Pistol     (3) NMCOSR (w/1 Star) JMUC  LoA (4) LoC

Period of TL: 19950428-19990823, 1576 days

NJP:  

- 19940405:	Article  (Absence without leave) 
	Awarded:     Suspended:   

SCM:  

SPCM:  

- 19950322:	Article  (Wrongful use, possession, etc., of controlled substances) 5 specifications 
	Specification 1: Wrongfully use cocaine between on or about May 1994 and June 1994
	Specification 2: Wrongfully use marijuana at an unknown location between Fayetteville, NC and Jacksonville, NC on or about 19950119 
	Specification 3: Wrongfully use marijuana at an unknown location on or about 19950127
	Specification 4: Wrongfully possess marijuana on 19950205
	Specification 5: Wrongfully introduce cocaine onto an installation on or about 19950205    
	Sentence:   (19950322-19950421, 30 days)  RIR-E-1
	CA: The sentence is approved and, except for the bad conduct discharge, will be executed

CC:  

Retention Warning Counseling:  

- 19940405:	For unauthorized absence 

Administrative Corrections to the Applicant’s DD 214

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

	  “MILPERSMAN 5815-010”
	  “COURT-MARTIAL”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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 22, effective 15 December 1998 to 
21 August 2002, Article 5815-010, Executing a Dishonorable or Bad Conduct Discharge.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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.	The Applicant contends his discharge is inequitable because his misconduct and drug use was caused by an in-service mental health condition.
2.	The Applicant contends his honorable in-service conduct from his previous enlistments warrants consideration for an upgrade.
3.	The Applicant contends his post-service conduct is worthy of an upgrade. 

Decision

Date:  20140923		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.  With respect to a discharge adjudged by a court-martial case, 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.  In response to the Applicant’s clemency request, relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  The Applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) warning,   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, one specification); and   for  of the UCMJ:  Article 112a (Wrongful use, possession, etc., of controlled substances; five specifications). The Applicant also had a pre-service drug waiver for using marijuana  prior to entering the Navy.  Based on the Applicant's conviction and sentence at a special court-martial, he was confined and separated with a Bad Conduct characterization of service.  The Applicant’s court-martial findings were extensively reviewed during a lengthy appeal process and his bad conduct discharge affirmed and ordered to be executed by the Navy and Marine Corps Appellate Leave Activity on 23 August 1999.

:  (Decisional) ()  CLEMENCY NOT WARRANTED.  The Applicant contends his discharge is inequitable because his misconduct and drug use was caused by an in-service mental health condition.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB agrees with the Court’s decision and does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  Clemency denied.

:  (Decisional) ()  CLEMENCY NOT WARRANTED.  The Applicant contends his honorable in-service conduct from his previous enlistments warrants consideration for an upgrade.  The Applicant completed his two prior enlistment periods with an Honorable characterization of his service for those periods of service; however, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted.  Clemency denied.

:  (Decisional) ()  PARTIAL CLEMENCY WARRANTED.  The Applicant contends his post-service conduct is worthy of an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement, evidence of college attendance and graduation, a mental health diagnosis from a military treatment facility after his release from his SPCM confinement, and documentation showing his ongoing mental health treatment and condition.  The Applicant could have provided additional documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, 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.  

After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration his testimony, the facts, and circumstances unique to this case, the NDRB determined partial relief is warranted based on post-service efforts.  The Board determined that the documentation submitted by the Applicant demonstrates adequate post-service progress given his mental health condition and that a limited amount of clemency is warranted.  The NDRB voted to upgrade the characterization of service to Under Other Than Honorable Conditions by a majority vote and unanimously voted to not change the narrative reason for separation.  Partial Clemency Granted. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, discharge process, and post-service achievements and conduct, the Board found partial   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  The Applicant is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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