Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND07-00488

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

ex-ENFR, USN
ND07-00488

Current Discharge and Applicant’s Request

Application Received:  20070306 	Characterization Received:  OTHER THAN HONORABLE
Narrative Reason:  MISCONDUCT-DRUG ABUSE (USE) Authority:  MILPERSMAN 3630320

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Applicant not afforded treatment for alcohol problems before discharge
			2. Discharge not warranted because there was no Captain’s Mast
			3. Applicant coerced into signing Separations Documents while inebriated
			4. Paperwork was not explained during the discharge process

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 (USE).

Date:  20071101       			DOCUMENTARY REVIEW		Location:  Washington D.C. 

Discussion

Issue 1: (Equity).  The Applicant implies that he was not afforded treatment for his alcohol problems before his discharge.  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 issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention.  Naval policy requires that a member that is diagnosed with alcohol dependence is afforded the opportunity to elect treatment.  The Applicant was diagnosed on 19920105 not to be alcohol dependent by competent medical authority.  

Issue 2: (Equity).  The Applicant contends his discharge was not warranted because he did not receive Captain’s Mast.  The Applicant met the minimum requirements for processing for drug abuse rehabilitation failure.  The Applicant completed CAAC Level II treatment in November 1991 and was the subject of an alcohol abuse incident during the one year after care treatment period.  Additionally, the Applicant met the requirements for separation processing due to drug abuse by testing positive on a unit sweep urinalysis.  The Applicant received nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 112a (Wrongful use of scheduled I controlled substance) as a result of the positive urinalysis test.  BUPERS WASHINGTON DC directed the discharge due to drug abuse because the Applicant’s unfavorable record.  An upgrade to general (under honorable conditions) would be inappropriate.

Issue 3 & 4: (Equity).  The Applicant contends he was coerced into signing his separation documents while he was inebriated and that the discharge process was not explained to him.  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 issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention.  There is, however, evidence in the record that the Applicant waived his right to consult with counsel and waived his right to an Administrative Board during the administrative discharge process.

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable.

. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900418 - 19900625  COG		Active:   NONE
Period of Service Under Review:
Date of Enlistment: 19900626	Years Contracted:  4	Date of Discharge:  19920408
Length of Service:  01  Yrs  09  Mths  13  Dys	Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  26	AFQT:  41	Highest Rank/Rate:  ENFA
Evaluation marks (# of occasions):	Performance:  3.0(1)	Behavior:  2.6(1)	 OTA:  3.00 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, SOUTHWEST ASIA SERVICE MEDAL

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

19910617:	NJP -- Viol UCMJ Art. 112a - Wrongful use of scheduled I controlled substance.
	Awarded - FOP ($375.00) for (2 months); CCU for (30 days), RIR (E-1).

19910617:	Retention Warning for violation of the Uniform Code of Military Justice and misconduct in the form of drug abuse, to wit: wrongful use of a scheduled I, controlled substance, and unacceptable personal behavior.

19910617:	Applicant found fit for confinement.

19910625:	Drug and Alcohol Abuse Report:  Marijuana abuse, ashore off duty.  Unit sweep urinalysis on 19910528.  Commanding Officer recommended retention/separate from service.  Comments:  NJP  19910617 - Art 112a (wrongful use of THC.  Awarded $375.00 for 2 months, RIR to ENFR, correctional custody for 30 days.  SNM exhibits potential for future naval service.  Amendment to this DAAR will follow with CAAC and medical officer evaluation.

19910806:	Medical Record: Reason for visit: Command directed visit for Drug Abuse. 
Assessment: Nondependent drug user
Recommendation: Level II CAAC  

19910813:	Drug and Alcohol Abuse Report:  Marijuana abuse, ashore off duty.  Unit sweep urinalysis on 19910528.  CAAC and physician found applicant not dependent and recommended Level II treatment.  Commanding Officer recommended retention and Level II treatment.

19920105:	Substance abuse and Dependency Evaluation:  Not dependent on alcohol.

Discharge Process

Date Notified:					UNDATED
Reason for Discharge:	DRUG ABUSE REHABILITATION FAILURE
Least Favorable Characterization:	NOT FOUND IN RECORD

Date Applicant Responded to Notification:		19911222
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED
	Administrative Board			WAIVED
	
Commanding Officer Recommendation (date):	GENERAL (UNDER HONORABLE CONDITIONS) (19911230)
Separation Authority (date):	BUPERS (19920129)
              	Reprocessing necessary - does not meet criteria for drug abuse rehabilitation failure - reprocess for misconduct due to drug abuse.

Date Notified:					19920222
Reason for Discharge:	DRUG ABUSE REHABILITATION FAILURE
	MISCONDUCT - DRUG ABUSE
Least Favorable Characterization:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		19920222
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED
	Administrative Board			WAIVED
	
Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (19920223)
Separation Authority (date):	BUPERS (19920318)
              Reason for discharge directed:	MISCONDUCT - DRUG ABUSE
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:	19920408

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), effective 15 August 1991 until 4 March 1993, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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