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

Docket No. ND07-00988

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

ex-FR, USN
ND07-00988

Current Discharge and Applicant’s Request

Application Received:  20070706	Characterization Received:  OTHER THAN HONORABLE
Narrative Reason:  MISCONDUCT DRUG ABUSE 	Authority:  MILPERSMAN 1910-146

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change: NONE REQUESTED

Applicant’s Issues:	1.  Want to rejoin US Navy as a JAG.
			2.  Young and not given a fair chance, statement was written as directed, did not know it would be 				treated as a confession.
			3.  Post Service statement – in school.

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:  20080110	DOCUMENTARY REVIEW	Location:  Washington D.C	 Representation:  NONE

Discussion

Issue 1:  This is an Issue which the Board cannot form the basis of relief for the Applicant, or one that the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.

Issue 2 (Propriety):  The Applicant contends that he was not given a fair chance and that his admission was coerced.  In reviewing discharges, the Board presumes regularity in the conduct of government affairs unless there is substantial credible evidence to rebut the presumption.  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 of unfair treatment or coercion.  Furthermore, the separation code (entered on block 26 of the DD-214) indicates that the Applicant waived his right to an administrative board.  Separation processing is mandatory for Sailors who abuse illegal drugs.  Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a dishonorable discharge and up to five years of imprisonment if adjudicated by a court martial.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  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.  

Issue 3 (Equity):  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant stated in his letter to the board that he is currently going to college and has completed an Associates of Arts in Pre-Law in support of his argument for an upgrade based on post-service conduct.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of a drug free lifestyle, and certification of non-involvement with civil authorities.  Board determined that the Applicant’s unsubstantiated statements did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service.  

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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.

Administrative Corrections to the Applicant’s DD 214

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

	Block 12a, Date Entered AD This Period, should read: “2002 OCT 15”
	Block 12c, Net Active Service This Period, should read: “00 08 09”
	Block 12e, Total Prior Inactive Service, should read.  “00 04 20”
	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”

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)	20020524 - 20021014  COG		
Period of Service Under Review:
Date of Enlistment: 20021015		Years Contracted:  4		Date of Discharge:  20030624
Length of Service:  00 Yrs 08 Mths 09 Dys				Lost Time:  NONE
Education Level:  12	Age at Enlistment:  17 (PARENTAL CONSENT)	AFQT:  53	Highest Rank/Rate:  FA
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A		 OTA:  N/A 
Awards and Decorations (per DD 214):  NDSM

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

20030306:	Applicant reported for duty aboard USS EMORY S LAND (AS 39), La Maddalena, Italy. 

20030618:	NJP 

20030624:	Applicant discharged.

Discharge Process

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

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

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	NOT FOUND IN RECORD
              Characterization directed:	NOT FOUND IN RECORD
Date Applicant Discharged:	20030624

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 25 January 2004, 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