ex-AZAA, USN
ND07-00407

Current Discharge and Applicant’s Request

Application Received:  20070214	Characterization Received:  
Narrative Reason:  DRUG ABUSE 			Authority:  MILPERSMAN 1910-146

Applicant’s Request:	Characterization change to:  
			Narrative Reason change: 

Applicant’s Issues:	1.  No issues submitted.

Decision

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

Date:  20071025  					Location:  Washington D.C. 

Discussion

Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of discipline of the naval service.  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 “under 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.  The Applicant’s service was marred by a nonjudicial punishment for violating UCMJ Article 112a (wrongful use of a controlled substance, marijuana).  This nonjudicial punishment forms the basis for the Applicant’s administrative discharge based upon misconduct due to drug use.  For the information of the Applicant, violations of UCMJ Article112a carries a penalty of a dishonorable discharge and 5 years of imprisonment for each specification if adjudicated by a court martial.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade. 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

	  “MISCONDUCT”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19950707 - 19951217  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19951218	Years Contracted:  ;		Date of Discharge:  19991115
Length of Service:  03 Yrs 10 Mths 28 Dys				Lost Time:  Days UA:  6 
Education Level:  	Age at Enlistment:  	AFQT:  71	Highest Rank/Rate:  AZAN
Evaluation marks (# of occasions):	Performance:  4.0		Behavior:  3.0 		 OTA:  3.33 (1) 
Awards and Decorations (per DD 214):  SEA SERVICE DEPLOYMENT RIBBON (2), ARMED FORCES SERVICE MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL (2), NATO MEDAL, MERITORIOUS UNIT COMMENDATION, FIRST GOOD CONDUCT FOR PERIOD ENDING 98DEC17.

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

19991014:	NJP - Viol UCMJ Art. 112a (wrongful use of a controlled substance, Marijuana) and Viol UCMJ Art. 86 (unauthorized absence) from 19990928 until 19991004.
	Awarded - FOP ($537.00 for 1 month); RIR (E-2); Restr (45 days); Extra duties (45 days).

19991022:	Applicant admitted to using marijuana twice during his drug dependency screening.

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	 - 
	
Least Favorable Characterization:	

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

Commanding Officer Recommendation (date):	
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19991115

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), Change 24, effective 20 May 99 until 26 March 2000, 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.

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