ex-SR, USN
ND07-00289

Current Discharge and Applicant’s Request

Application Received:  20061228 	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-146

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Applicant claims he cooperated with NCIS for a more favorable discharge.
			2. Personal problems - Equity

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20071004  Location:  Washington D.C.  The Board found that 

Discussion

Issue 1 ():  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, Applicant alleged that he should have received a more favorable discharge because he cooperated in an NCIS investigation.  The record, however, contains no evidence of any agreement between the Applicant and the government concerning a more favorable discharge in exchange for the Applicants help in an investigation.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.

Issue 2 ():  The Applicant contends that his problems in the Navy can be attributed to his personal difficulties.  While he may feel that his personal issues were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and 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:
Inactive: USNR (DEP)	20021209 - 20030709  		Active:   
Period of Service Under Review:
Date of Enlistment: 20030710		Years Contracted:  		Date of Discharge:  20040224
Length of Service:  00  Yrs  07  Mths  15  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  51	Highest Rank/Rate:  SR
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 OTA:  N/A 
Awards and Decorations (per DD 214):  NONE

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

20031224:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20031217, tested positive for cocaine.

20040123:	Retention Warning for violation of UCMJ Article 112a - Wrongful use of a controlled substance.

20040123:	NJP -- Viol UCMJ Art. 112a - Wrongful use of cocaine.
	Awarded - FOP ($596.00) for (2 months); Restr for (45 days); Extra duties (45 days).

20040123:	Applicant was restricted to Naval Submarine Base New London and extra duty until 20040307.

20040204:	Applicant not recommended for reenlistment and assigned an RE code of RE – 4 because of misconduct.

Discharge Process

Date Notified:					20040123
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20040123
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (not found in record)
Separation Authority (date):	COMMANDER, SUBMARINE GROUP 2 (20040209)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20040224

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
28 April 2005, 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, wrongful use 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 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