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

Docket No. ND07-00094

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

MS3, USN
ND07-00094

Current Discharge and Applicant’s Request

Application Received:  				20061023 	
Characterization Received: 			 UNDER OTHER THAN HONORABLE CONDITIONS	
Narrative Reason for Separation:  			MISCONDUCT-DRUG ABUSE 
Discharge Authority:  				MILPERSMAN 3630620

Applicant’s Request:				
Characterization change to:  HONORABLE  
	Narrative Reason change to: NONE REQUESTED
	Review Requested:	  DOCUMENTARY REVIEW		
Representation:			  NONE DESIGNATED

Applicant’s Issues:
1.Equity – Post service

Decision

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

Date of Decision:  				20070823
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

Issue 1 (Equity).  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 should 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.  As of this time, the Applicant has not provided any/sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  

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.

Summary of Service

Prior Service:
Inactive: USMCR (DEP)				19870221 - 19870707  COG
Active:						NONE

Period of Service Under Review:
Date of Enlistment:                                                           19950314	
Years Contracted:                                                              6; Extension:  NONE.  
Date of Discharge:  			                 19971031
Length of Service:                                                             02  Yrs  02  Mths  03  Dys	
Lost Time:                                                                         Days UA:  NONE  
Days Confined:                                                                  NONE

Education Level:                                              12	
Age at Enlistment:                                           25	
AFQT:                                                              41	
Highest Rank/Rate:  		              MS2
Evaluation marks (# of occasions):	Performance:  3.3(3)	Behavior:  2.7(4)	 OTA:  2.8(4) 

Awards and Decorations (per DD 214):  SEA SERVICE DEPLOYMENT RIBBON (3^RD AWARD), ARMED FORCES EXPEDITIONARY MEDAL, NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL, NAVY UNIT COMMENDATION, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON (2^ND AWARD), NAVY "E" RIBBON  

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19950331:	Reenlisted this date for a term of 6 years

19970724:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 19970714, tested positive for (Cocaine, THC).

19970724:	Drug and Alcohol Abuse Report: Cocaine abuse as a result of a random urinalysis, found not dependent, recommended for separation not via VA Hospital.

19970811:	 CO's NJP -- Viol UCMJ Art. 112a – Wrongful use of a controlled substance (Tetrahydrocannabinol and cocaine).
	 Awarded: FOP (1/2 month pay for 2 months (suspended for 6 months), RIR (E-4).

Discharge Process

Date Notified:					19970812
Reason for Discharge:	                                             MISCONDUCT - DRUG ABUSE
		     	 
Least Favorable Characterization:	                              NOT FOUND IN RECORD

Date Applicant Responded to Notification:		19970813
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED  
	Administrative Board			ELECTED
	GCMCA review				NOT FOUND IN RECORD

Administrative Board Date:	19971009
              Findings, by preponderance of the evidence:	BY UNANIMOUS VOTE MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
	BY UNANIMOUS VOTE MISCONDUCT - DRUG ABUSE.
	
              Recommendation on Separation:  	BY UNANIMOUS VOTE SEPARATION WAS WARRANTED.
              	BY UNANIMOUS VOTE SEPARATE 
              Recommendation on Characterization:	BY UNANIMOUS VOTE UNDER OTHER THAN HONORABLE CONDITIONS

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (19971017)
Separation Authority (date):	COMMANDER, NAVAL BASE SAN DIEGO (19971023)
              Reason for discharge directed:	MISCONDUCT - DRUG ABUSE
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:	19971031

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:  	
	Employment:  		☐	Finances:  		☐	Education: 		☐
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
	
Additional Statements From Applicant:  ☒	From Representative:  ☐  
Other Documentation (Describe) ☐      

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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 of a contolled 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 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:  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