Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-01058

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

Docket No. NDXX-00000

ex-AEAN, USN
ND06-01058

Current Discharge and Applicant’s Request:

Application Received:  				2060805
	Characterization of Service:		UNDER OTHER THAN HONORABLE CONDITIONS
	Reason for Discharge:			MISCONDUCT - DRUG ABUSE
	Discharge Authority:			MILPERSMAN 1910-146
	Duty Assignment/Command at Discharge:	STRKFITRON 34

Applicant’s Request:	
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: 		NONE REQUESTED
	Review Requested:			DOCUMENTARY REVIEW
	Representation:				NONE DESIGNATED
	Issues (as summarized by NDRB):		1. Quality of Service- Equity
						2. Re-entry into Military Service  

Decision:

Date of Decision:					20070706
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Reason for Discharge shall remain MISCONDUCT - DRUG ABUSE.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				NONE
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				20010222     
Years Contracted:  				4;  NO EXTENSION      
Date of Discharge:				20041018
Length of Service:				03  Yrs  07  Mos  27  Days

Does not exclude lost time, if any.

Time Lost During This Period:			30
Days Unauthorized Absence:			NONE
Days Confinement:				30

Education Level:  				12
Age at this Enlistment:  				23
AFQT:  						47
Highest Rate/Rank:				AEAN

Performance Evaluation Averages (number of marks):
Performance:					4.0 (2)
Behavior:					4.0 (2)
OTA:						3.75
Extracted from:  
Applicant’s Supporting Documents  ☐  Other:       ☐

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, MERITORIOUS UNIT COMMENDATION MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NAVY GOOD CONDUCT MEDAL 

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20040720:	First Endorsement of Applicants offer to plead guilty at summary court-martial and to waive his administrative board in lieu of a special court-martial.

20040727:	COMNAVAIRLANT approved the request for summary court-martial with administrative board waiver in lieu of trial by special court-martial.
	
20040805:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 112A (2 specifications).
	Specification 1: Wrongfully use of cocaine on or about 200402.
	Specification 2: Wrongfully use cocaine on or about 200404.
	Finding: To Charge and the specification thereunder, guilty.
	Sentence: Confinement for 30 days, reduction to E-1.
	CA action 20040923:  Sentence approved and ordered executed.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Notification Procedure
Date Notified:					20040908
Reason for Discharge				DRUG ABUSE						
Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Record Supports Narrative Reason:			YES
Date Applicant Responded to Notification:		20040908
Rights Elected at Notification:
Consult with Counsel			WAIVED
Administrative Board			WAIVED
Obtain Copies	  			WAIVED
Submit Statement(s) (date)			WAIVED       
GCMCA Review				NOT APPLICABLE

Recommendation of Commanding Officer (date):	20040928UOTHC      
Discharge directed by (date):			COMNAVAIRLANT NORFOLK 20041004     
Narrative reason directed:				DRUG ABUSE
Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS 
Date Applicant Discharged:			20041018

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				6
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					1
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation	 (Describe Below)		0     

        Total Number of Pages:				8

       Description of Other Documentation:
       	     

Applicant’s Issues as Summarized by the Board:
1.  Quality of Service- Equity
2.  Re-entry into Military Service  

Issue 2 -This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one that the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.  

Decisional Issues:
The Board considered the following issue(s):     

Issue 1 (Equity):  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable discharge is warranted when significant negative aspects of the member’s military conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by one summary court-martial hearing for violation of Article 112a (wrongful use, cocaine 2 specifications) of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted. 
  
In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, Article 1910-146 (formerly 3630620), 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.

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 112a (wrongful use, possession etc… of a controlled substance). 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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