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

Docket No. ND06-01091

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

Docket No. NDXX-00000

FOR
 ex-MA1, USN
ND06-01091

Current Discharge and Applicant’s Request:

Application Received:  				20060816
Narrative Reason for Separation:			MISCONDUCT ()
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	US NAVAL SECURITY FORCE, BAHRAIN

Applicant’s Request:
	Narrative Reason change to:		cOMPLETED REQUIRED ACTIVE DUTY SERVICE
	Characterization change to:		
	Review Requested:			
Representation:  					
Issues (as summarized by NDRB):			1.  1 incident in 17.9 years of service.
						2.  Result of depression, stress, anxiety, and marital problems
						3.   Involuntarily extended six months on station Bahrain.

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   ( ).

Date of Decision:					20070802
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

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

Discussion

Narrative reason change:  Commander Naval Personnel directed the Applicant’s discharge by reason of misconduct due to drug abuse after reviewing the administrative discharge package forwarded by U. S. Naval Security Force, Bahrain.  The Applicant’s current enlistment was marred by nonjudicial punishment for his violation of UCMJ Article112a (wrongful use and wrongful importation of a controlled substance).  Since no other narrative reason for separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.  

Issue (1) (equity) (1 incident in 17.9 years of service):  The Applicant states that his discharge was based on one isolated incident.  Despite a servicemember’s prior record of service certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The record documents his in-service use and importation of illegal drugs, which is the basis for his discharge.  The record documents his administrative discharge board and commanding officer’s recommendation for separation by reason of misconduct by drug abuse with a characterization of service as under other than honorable.  Commander, Naval Personnel directed the Applicant’s discharge after the reviewing the discharge process.  

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  An “other than honorable conditions” characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.   In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  
												
Issue (2) (equity) (result of depression, stress, anxiety, and marital problems):  The Applicant contends that his discharge was inequitable because of his depression, stress, anxiety and marital problems.  The Board reviews the propriety and equity of each Applicant’s discharge individually.  The Applicant’s service was marred by a positive urinalysis for marijuana use and a nonjudicial punishment for violations of UCMJ Article 112a (wrongful use and wrongful importation of a controlled substance).  Violations of UCMJ 112a are considered the commission of a serious offense; specifically this offense carries a maximum penalty of a Dishonorable Discharge and up to 15 years of imprisonment.  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.  

Issue (3) (equity) (involuntarily extended six months on station Bahrain):  In the Applicant’s letter to the Board he contends that his misconduct was the result of being involuntarily extended in Bahrain.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was forced to extend.  To the contrary the record contains an “Agreement to Extend Enlistment” form which the Applicant signed on 28 Feb, 2005.  Even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The record clearly reflects his willful misconduct which demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

Summary of Service:

Prior Service:
Active:   USN		               		19871228 - 19921222 
Active:   USN					19921223 – 19941110 HON
Active:   USN					19941111 – 19980623 HON
Active:   USN					19980624 – 20010315 HON

Period of Service Under Review:
Date of Enlistment:  				20010316
Years Contracted:  				;        
Date of Discharge:				20050915
Length of Service:				4  Yrs 5 Mos 30 Days
Time Lost During This Period:			
Days Unauthorized Absence:			NONE
Days Confinement:				NONE

Education Level:  				
Age at this Enlistment:  				
AFQT:  						60
Highest Rate/Rank:				MA1

Performance Evaluation Averages (number of marks):
Performance:					3.5
Behavior:					3.5
OTA:						3.50 (4)

Awards and Decorations (as listed on the DD Form 214):
GOOD CONDUCT MEDAL (5), NATIONAL DEFENSE SERVICE MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL, SOUTHWEST ASIA SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (4), NAVY AND MARINE CORPS OVERSEAS RIBBON (3), NAVY PISTOL MARKSMANSHIP RIBBON, ENLISTED SURFACE WARFARE SPECIALIST INSIGNIA.

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

20010316:	Reenlisted this date for a term of 3 years.

20011204:	Applicant agreed to extend enlistment 12 months.  New EAOS 20050315.

20020304:	Applicant reported for duty, Naval Security Force Bahrain.

20050228:	Applicant extended enlistment 6 additional months.  New EAOS 20050915.

20050516:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample tested positive for (Marijuana) [Extracted from Administrative Counseling Warning dated 20050914].

20050830:	An Administrative Discharge Board, based upon a preponderance of the evidence, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.  [Extracted from Administrative Counseling Warning dated 20050914].

20050914:	Administrative Counseling and Warning: You are being separated from the U.S. Navy at the expiration of your current enlistment contract.  An RE-4 code will be issued as a result of the ADSEP board held 30 Aug 2005 finding misconduct due to drug abuse (MILSPERSMAN 1910-146) recommending separation with an Other than Honorable characterization of service.  In this proceeding, it was found that you abused drugs through the importation of 6.4 grams of marijuana into the Kingdom of Bahrain International Airport and you were then additionally found to have used marijuana through subsequent positive result in a urinalysis test (reference NAVDRUGLAB JACKSONVILLE FL MSG 161942Z MAY 05).  Although the board’s recommendation for discharge based upon misconduct with an Other than Honorable characterization of service was further endorsed by the Commanding Officer, U. S. Naval Support Activity Bahrain (SSIC 1910, Ser 00/385 of 8 Sep 05), this discharge recommendation could not be effected due to time constraints in processing the discharge prior to your EAOS.  Therefore, U. S. Naval Support Activity Bahrain was forced to discharge on a basis of expiration of EAOS.

20050914:	COMNAVPERSCOM directed TRANSITPERSU JACKSONVILLE to discharge the Applicant under other than honorable conditions due to misconduct by drug abuse.

20050915:	Applicant discharged on the last day of his enlistment under other than honorable conditions due to misconduct by drug abuse.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge				MISCONDUCT ()
						
Least Favorable Characterization:			NOT FOUND IN RECORD
Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel			NOT FOUND IN RECORD
Administrative Board			ELECTED
Obtain Copies	  			
Submit Statement(s) (date)			 
GCMCA Review				
						
Recommendation of Commanding Officer (date):	Under Other than Honorable
Discharge directed by (date):			COMNAVPERSCOM MILLINGTON TN (20050914) 
Narrative reason directed:				MISCONDCUT ()
Characterization directed:				
Date Applicant Discharged:			20050915

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:				56
	Other Period of Service:				     
       Related to Post-Service Period:
	Community Service:				     
	Education:					     
	Employment:					     
	Health/Medical:					1     
	Character Statements:				2     
	Criminal Records Checks:				     
	Additional Statements from Applicant:		     
        Other Documentation	 (Describe Below)		10

        Total Number of Pages:				69

       Description of Other Documentation:
       	Articles about Islam 

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 
29 April 2005 until Present, 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.

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 (drug abuse – wrongful importation).

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