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

Docket No. ND08-00663

ex-AR, USN

Current Discharge and Applicant’s Request

Application Received:  20080124
Characterization of Service Received:  OTHER THAN HONORABLE
Narrative Reason for Discharge:  MISCONDUCT-DRUG ABUSE)
Authority for Discharge:  MILPERSMAN 1910-146 (DRUG ABUSE)

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20010105 - 20010121  COG		Active:   NONE
Period of Service Under Review:
Date of Enlistment: 20010122	Period of enlistment:  4 Years  NO Extension	Date of Discharge:  20010914
Length of Service:  00  Yrs  07  Mths  23  Dys	Education Level:  12	Age at Enlistment:  20	AFQT:  71
Highest Rank/Rate:  AA	Evaluation marks:  Performance: N/A	Behavior: 2.0(1)	OTA:  2.00
Awards and Decorations (per DD 214): NONE

Periods of UA/CONF:  NONE

NJPs:	2
	20010619:  Art(s) 86 (Absence without leave); 
                                            90 (Willful disobedience of Superior Commissioned Officer); 
                                            92 (Orders violation).
	                             Awarded - FOP RESTR EPD  Susp - FOP.
	20010905:  Art(s) 112a (Wrongful Use of controlled substance).  Awarded - FOP RESTR EPD RIR  Susp - NONE.

Retention Warnings:  1.
	20010619:  For unauthorized absence, willful disobedience of Superior Commissioned Officer and order violations.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214 based on administrative discharge approval from the Chief of Naval Education and Training, 1910 Ser OOJ/677 of 13 Sep 2001:

	Block 25, Separation Authority, should read: “MILPERSMAN 1910-140”
	Block 26, Separation Code, should read: “HKA”
	Block 28, Narrative Reason for Separation, should read: “PATTERN OF MISCONDUCT”

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

Types of Documents Submitted

Related to Military Service:	DD 214:  ☒	Service and/or Medical Record:  ☐		Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
	
Additional Statements From Applicant:  ☐		From Representation:  ☐		From Member of Congress:  ☐
Other Documentation (Describe) ☐

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

Applicant’s Issues

1. Reenlistment opportunities.
2. Didn’t use drugs– found drugs in friend’s car.

Decision

Date:  20080523	   DOCUMENTARY REVIEW         Location:  Washington D.C    	 Representation:  NONE

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 read PATTERN OF MISCONDUCT.

Discussion

Issue 1(Equity):  RELIEF NOT WARRANTED  Applicant contends his discharge should be upgraded because he wants to reenlist in the U. S. military.  This is an Issue the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, for additional information regarding Reenlistment/RE Codes.

Issue 2(Equity):  RELIEF NOT WARRANTED  The Applicant contends he was tested for drugs and the results were negative.  He admits to having ecstasy in his possession.  However, he states he found the pill in a friend’s car and threw it away.  The record reflects he was subsequently taken to Captain’s Mast and found guilty of wrongful use or possession of ecstasy, a controlled substance.  There is credible evidence in the record the Applicant possessed illegal drugs.  Mandatory processing for separation is required for Sailors who possess illegal drugs.  Separation under these conditions usually results in a characterization of service as under other than honorable conditions.  The Board found no indication in the record the Applicant was inequitably or improperly administratively processed for discharge.   In fact, the Applicant’s record indicates he received 2 Non-Judicial Punishments for violations which included willful disobedience of a Superior Commissioned Officer, absence without leave, orders violation and wrongful use or possession of a controlled substance: all of which established a pattern of misconduct.  The Applicant received a retention warning for unauthorized absence, willful disobedience of a Superior Commissioned Officer and orders violation on 19 June 2001.  The CO, Naval Air Technical Training Center’s recommendation for discharge was based on a pattern of misconduct, commission of serious offenses and drug abuse.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Therefore, the Board determined relief was not warranted. 

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.  The Board determined based on evidence in the record the DD-214 was in error and requires administrative correction as noted above in the “Administrative Corrections  to the Applicant’s DD 214” section.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service  Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.   

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 
21 August 2002, Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 86, 90, 92 and 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