ex-HT2, USN
ND07-00899

Current Discharge and Applicant’s Request

Application Received:  20070621 	Characterization Received:  
Narrative Reason:  MISCONDUCT (DRUG ABUSE) 	Authority:  MILPERSMAN 1910-146

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Did not commit misconduct, admission of drug use was involuntary
			2. Administrative Discharge Board and Separation Authority did not consider all relevant evidence

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (DRUG ABUSE).

Date:  20080103		Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ().  The government is entitled to a presumption of regularity in the conduct of its affairs.  The written record of the Applicant’s admission of drug use appears proper on its face.  Essentially, the Applicant asks this Board to believe his version of events rather than believe the command investigator’s version of events.  In support, the Applicant submitted a document that purports to be from the former member who originally claimed to have observed the Applicant use cocaine.  In this most recent document, the purported former member indicates that his original accusation against the Applicant was false.  The Applicant’s reiteration of his innocence, by itself, is not sufficient to overcome the presumption that his admission was voluntary as it appears.  Further, the Board determined that, even if accepted the authenticity of the submitted document, it could not determine its validity in light of all the circumstances.  Therefore, the Board found the discharge to be proper.

Issue 2 ().  The record demonstrates that the Applicant fully and vigorously exercised his rights throughout the entire discharge process.  The record also supports the conclusion that all persons charged with the responsibility of ascertaining the facts and determining an appropriate disposition did so in a comprehensive, diligent manner.  The Applicant’s basis for this issue appears simply to be the fact that he was not believed by the members of his administrative discharge board and the Separation Authority.  This, by itself, does not constitute evidence of an impropriety in the 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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19990708 - 19990823  		Active:   	19990824 - 20021121  
										20021122 - 20061115  
Period of Service Under Review:
Date of Enlistment: 20061116		Years Contracted:  ; Extension:  		Date of Discharge:  20070517
Length of Service:  00  Yrs  05  Mths  02  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:  		Age at Enlistment:  		AFQT:  38	Highest Rank/Rate:  HT2
Evaluation marks (# of occasions):	Performance:  3.8(4)	Behavior:  2.8(4)	 	OTA:  3.50 
Awards and Decorations (per DD 214):  NMCAM, NUC, NDSM, GCM(2), GWOTEM, SSDR(2) (Applicant submitted documentary evidence of award of GWOTSM, OSR, CERTCOM(2), LoC and LoA)

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

20071204:	Sailor with positive urinalysis for cocaine provided statement claiming to have observed Applicant use cocaine.

20071205:	Applicant provided statement to command investigator admitting to cocaine use on 6 occasions. 

20070103:	Report and Disposition of Offense (NAVPERS 1626/7) forwarded to Commanding Officer, Naval Air Station Atlanta, alleging Applicant used cocaine about April 2006.  Applicant demanded trial by court-martial, and provided statement claiming that he was innocent of allegation.

Discharge Process

Date Notified:					20070123
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20070123
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 
	Administrative Board			

Administrative Board Date:	20070322
              Findings, by preponderance of the evidence:	BY 3-0 VOTE  -  .
	BY 3-0 VOTE SEPARATION  WARRANTED.
              Recommendation on Separation: 	BY 3-0 VOTE 
              Recommendation on Characterization:	BY 3-0 VOTE 

Commanding Officer Recommendation (date):	 (20070423)
Separation Authority (date):	COMMANDER, NAVY REGION SOUTHEAST (20070507)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20070517

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)  Extract from OPNAVINST 5350.4C and MILPERSMAN; Ltrs from Member of Congress, Ltr from Navy Personnel Command to Member of Congress

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.

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