ex-MM3, USN

Current Discharge and Applicant’s Request

Application Received:  20081112
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  DRUG ABUSE
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19930930 - 19940206  	Active:	  19940207 – 19980206  HON
Inactive: USNR-R       	19980207 - 20010929  HON 	Active:	  20021203 – 20041202  HON
Inactive: USNR (DEP)       20021121 - 20021202 

Period of Service Under Review:
Date of Enlistment:  20041203	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20071129	Highest Rank/Rate:  MM2
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  68
Evaluation Marks:	Performance:  3.6 (5)	Behavior:  3.6 (5)	OTA:  3.74

Awards and Decorations (per DD 214):	NDSM GWOTSM SSBN SDPP (2) NMCAM

Periods of UA/CONF:  

NJP:  
- 20071012:	Article 112a (Drug use, wrongful use, possession, etc., of a controlled substance)
	Awarded:    Suspended:  

SCM:     SPCM:      CC:      Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “04 DEC 03 ”
	  “02 11 26”
	  “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 
                               20021203 TO 20041202”

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

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	

Related to Post-Service Period (cont):

	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

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.

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 (Drug abuse).

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

Applicant’s Issues

1.  Change the assigned RE Code.
2.  Naval Criminal Investigator Service (NCIS) agent coerced him into confessing to drug use and the discharge based on drug use and awarded discharge characterization are unjust.

Decision

Date:  20090305		Location:  Washington D.C.	Representation:  

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

Discussion

:  In regard to the request to change the RE Code, this either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning s, for additional information regarding .

Issue 2:  ()  .  The Applicant’s counsel contends the discharge for drug abuse and the awarded “Under Other Than Honorable Discharge” are unjust.  He has requested the Applicant’s discharge for drug abuse be remitted and the characterization changed to “Honorable”.  Additionally, the Applicant’s counsel has submitted affidavits and in-service records for the Board’s consideration.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge and characterization of service, if such a change is warranted.  Pursuant to MILPERSMAN 1910-146, mandatory processing for drug abuse is required, for but not limited to, the following: 1) positive urinalysis tested and confirmed at a Navy Drug Screening Lab or other DoD approved lab; 2) admission of drug use; and/or 3) one or more military drug related offenses(s).  The Applicant’s record was marred by the award of one NJP on 12 October 2007, for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug abuse).  He was subsequently notified of administrative separation due to drug abuse on 22 October 2007 and waived all of his rights, except for copies of the documents to be forwarded to the separation authority.  Based on the commanding officer’s transmittal letter of 31 October 2007, the Applicant was given a urinalysis test as a part of  a standardized check–in process and was again tested during a random urinalysis two days later; both tests were positive for marijuana.  The record also reflects the Applicant was interviewed by NCIS agents and admitted to using marijuana on multiple occasions in August 2007.  There is credible evidence in the record to support administrative separation based on misconduct due to drug use.  There was no evidence in the record nor presented by the Applicant’s counsel to support the arguments the Applicant was treated unjustly, threatened by his chain of command or coerced into giving a confession to the NCIS agent.  The evidence presented by Applicant’s counsel was not sufficient to overcome the evidence of record in this case.  Additionally, the evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  

The Applicant’s counsel has requested an upgrade in the characterization of service to “Honorable”.  Separation under misconduct due to drug use usually results in a characterization of service as “Under Other Than Honorable Conditions”.  In reviewing the record of service, evidence presented by Applicant’s counsel and taking into consideration the seriousness of the offense, length of service, and lack of mitigating evidence, the Board determined an upgrade to honorable would not be appropriate.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  Use of illegal drugs is not conduct associated with service members in receipt of an “Honorable” discharge characterization.  Therefore the request to remit the administrative discharge due to drug use and approve an upgrade would be inappropriate and is denied.

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

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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