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

Docket No. ND10-00197

ex-IC2, USN

Current Discharge and Applicant’s Request
Application Received: 20091022
Characterization of Service Received: (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: (per DD 214) MISCONDUCT 
Authority for Discharge: (per DD 214) MILPERSMAN 1910-146 [DRUG ABUSE]

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

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	19830719 - 19830727  COG	Active:	USN   19830728 - 19860311 HON
				USN   19860312 - 19911031 HON
				USN   19911101 - 20000914 HON
		
Period of Service Under Review:
Date of Current Enlistment:  20000915	Age at Current Enlistment:  39
Period of Enlistment:  2 Years  6 MONTHS Extension
Date of Discharge:  20020823	Highest Rank/Rate:  IC1
Length of Service:  01 Year(s)   11  Month(s)   08 Day(s)
Education Level:  13	AFQT:  52
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  2.6 (3)	OTA:  3.02

Awards and Decorations (per DD 214):	GCM(4) NDSM(2) MUC NAVY "E" SSDR(8) AFEM SWASMw/b* OSR

Periods of UA/CONF:  NONE

NJP:  1
- 20020604:	Article 112a (Wrongful use of marijuana) 
	Awarded: RESTR EPD FOP RIR  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

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

	Block 12a, Date Entered AD This Period, should read: “83 JUL 28”
	Block 12c, Net Active Service This Period, should read: “19  00  11”
	
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:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☒	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☒	From/To Representation:	☐	From/To Congress member:	☒

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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.

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

Applicant’s Issues

1.    Nondecisional issues:  Applicant seeks career retirement benefits through restoration of rank and return to service.   

2.    Decisional issues:  Applicant seeks relief through an upgrade of characterization of his service to Honorable conditions as a matter of:  (1) (Equity) the Applicant contends his professional performance of duties and career accomplishments were not given due credit by the Administrative Separation Board, leading to his involuntary separation; (2) (Equity) the Applicant contends that his misconduct was a one-time, isolated incident that does not warrant separation from active duty after 19 years of service; (3) (Equity) the Applicant contends that separation and loss of retirement was unjust and inappropriate for the misconduct committed.   

Decision

Date:  20110106	DOCUMENTARY REVIEW       Location:  Washington D.C.	   Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified three decisional issues to the NDRB.  The NDRB completed a thorough review of the circumstances leading to his discharge, and the discharge process, to ensure his discharge met the pertinent standards of both equity and propriety.  

The Applicant’s service record included one nonjudicial punishment (NJP) during his current enlistment for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use, possession, etc of a controlled substance – Marijuana).  The Applicant’s official service record reflects no pre-service waiver for drug use and signed documents attesting to fully understanding the U.S. Navy Drug and Alcohol Abuse Policy dated 27 July 1983, 05 November 2001, and 01 Mar 2002.

Based on the offense committed by the Applicant, his command administratively processed him for separation.  Due to the Article 112a violation, processing for administrative separation was mandatory.  The NDRB reviewed the Applicant’s administrative separation package.  When notified of administrative separation processing using the administrative board procedure, the Applicant elected to exercise his right to consult with a qualified counsel, to submit written matters to the Separation Authority, and requested an administrative board hearing be held.  

On 30 June 2002, the Commanding Officer USS CONSTELLATION (CV-64) directed an Administrative Separation Board be convened; the administrative board was held at sea aboard the USS CONSTELLATION.  The Applicant was present with counsel.  Neither the Applicant nor his Counsel challenged any board members regarding their ability to act in the case and they did not question any member for cause.  No challenges were offered regarding the evidence presented.  The Administrative Separation Board determined, by a vote of 3-0, that a preponderance of the evidence presented supported the reason for separation: Misconduct – Drug Abuse per paragraph 1910-146 of the Naval Military Personnel Manual (MILPERSMAN).  By a vote of 3-0, the board recommended separation from the Naval Service and by a vote of 2-1 the board recommended a General (Under Honorable Conditions) characterization of service upon discharge.  

As required by paragraph 1910-704 of the MILPERSMAN, the Commanding Officer forwarded his concurrence and the findings of the Administrative Separation Board to the Commander, Naval Personnel Command (NPC-832) on 19 August 2002 for Separation Authority action.  On 21 August 2002, the Commander, Naval Personnel Command directed the Applicant be discharged from the Naval Service for Misconduct – Drug Abuse per MILPERSMAN 1910-146 and that he receive a General (Under Honorable Conditions) characterization of service with a re-enlistment code of RE-4.     

The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation that provides that a discharge be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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, is considered during Board reviews.  The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge.  The Applicant provided his personnel statement to the NDRB, copies of tradecraft certification and training, and work history since separation for the NDRB’s consideration.  

Issue 1:  (Nondecisional) The Applicant seeks career retirement benefits through restoration of rank and a return to service.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code.  The Applicant can petition the Board for Correction of Naval Records (BCNR) using Form DD-149.  When requesting this change, the Applicant should be prepared to provide as much supporting documentation as possible regarding his reasons for restoration of rank and justification for reinstatement.  The BCNR’s address is:
 
    Board for Correction of Naval Records 
    2 Navy Annex,  
    Washington, DC 20370-5100.  

Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant seeks relief through an upgrade of characterization of his service to Honorable as a matter of equity:  (1) the Applicant contends his professional performance of duties and career accomplishments were not given due credit by the Administrative Separation Board, leading to his involuntary separation; (2) the Applicant contends that his misconduct was a one-time, isolated incident that does not warrant separation from active duty after 19 years of service; (3) the Applicant contends that separation and loss of retirement was unjust and inappropriate for the misconduct committed.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut that presumption, to include evidence submitted by the Applicant.  The Applicant submitted no additional evidence to rebut that presumption.  The Applicant was afforded an Administrative Separation Board pursuant to his request as a function of the administrative separation process.  He was present at the board and represented by qualified legal counsel.  Neither the Applicant, nor his Counsel, challenged any board members regarding their ability to act in the case, and they did not question or challenge any member for cause.  Additionally, no challenges were made regarding the evidence presented during the board process.  The Administrative Separation Board determined, by a vote of 3-0, that a preponderance of the evidence presented supported the reason for separation: Misconduct – Drug Abuse per paragraph 1910-146 of the MILPERSMAN.  By a vote of 3-0, the board recommended separation from the Naval Service and by a vote of 2-1 the board recommended a General (Under Honorable Conditions) characterization of service upon discharge; the dissenting opinion recommended an Under Other Than Honorable characterization of service.  The Applicant was afforded all his rights and an opportunity to address a board of his peers to present his case for retention.   

The Applicant contends his discharge be upgraded based on his record of service, which was honorable apart from an isolated incident of misconduct.  Despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline - violation of Article 112(a) meets this standard.  The Applicant’s service record documents his acknowledging - in writing - the U.S. Navy Drug Policy on three separate occasions, the most recent being less than 3 months prior to testing positive on the command-directed random urinalysis test.  The Applicant was fully aware there is a zero-tolerance policy for drug abuse, and he acknowledged the consequences of violating it.  The record clearly documents willful misconduct and demonstrated that he was unfit for further service.  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.  

Furthermore, an Under Other Than Honorable Conditions characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  Although the Applicant completed three honorable periods of enlistment, his current enlistment period was marred by a nonjudicial punishment for violation of Article 112(a).  Violation of Article 112(a) is a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial.  In the Applicant’s case, the command did not pursue a punitive discharge but instead opted for the more lenient administrative discharge.  The Administrative Separation Board ultimately recommended a characterization of service of General (Under Honorable Conditions) even though Under Other Than Honorable Conditions would have been warranted and would not have been inconsistent with service norms for violation of Article 112(a).

When a Sailor's service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, regardless of grade and length of service, and falls short of what is required for an upgrade in the characterization of service. 

The NDRB found the characterization of the Applicant's discharge was proper, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, the NDRB determined that an upgrade would be inappropriate.  Relief as requested is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the NDRB determined that the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water