Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: lois.rojas
Company: NCPB

Docket No. ND11-00604

ex-FR, USN

Current Discharge and Applicant’s Request

Application Received: 20110104
Characterization of Service Received: (corrected) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (corrected) 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)	20001017 - 20001024  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20001025	Age at Enlistment:  19
Period of Enlistment:  4 Years
Date of Discharge:  20030430	Highest Rank/Rate:  FR
Length of Service:  02 Year(s)   06  Month(s)   06 Day(s)
Education Level:  12	AFQT:  38
Evaluation Marks:	Performance:  NFIR 	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM, SSDR, NUC, NAVY "E" 

Periods of CONF:  NONE

NJP:  4

-20010928:	Article 86 (Absent without leave, 3 specifications)
	Specification 1: Unauthorized absence 20010905 - 20010917 (12 days)
	Specification 2: Unauthorized absence - Failure to go to place of duty 20010814
	Specification 3: Unauthorized absence - Failure to go to place of duty 20010831
	Article 87 (Missing movement)
	Article 89 (Disrespect toward superior commissioned officer)
	Article 91 (Insubordinate conduct toward a petty officer)
	Article 117 (Provoking speeches or gestures) 
	Awarded: RESTR EPD FOP RIR        Suspended:  RIR 

- 20020725:	Article 86 (Absent without leave, specifically, unauthorized absence - Failure to go to place of duty)
	Awarded: RESTR EPD RIR FOP       Suspended:  NONE 

-20021230:	Article 92 (Failure to obey lawful order or regulation)
	Article 112a (Wrongful use, possession, etc., of a controlled substance - specifically, wrongful use of marijuana, 48 ng/ml)
	Article 134 (General Article, wrongful cohabitation)
	Article 134 (General Article, false swearing)
	Awarded: RESTR EPD FOP RIR       Suspended: FOP       Vacated 20030117

          -20030117:     Article 112a (Wrongful use, possession, etc., of a controlled substance - specifically, wrongful use of marijuana, 83 ng/ml)
                                 Article 112a (Wrongful use, possession, etc., of a controlled substance - specifically, wrongful introduction of a controlled substance aboard a naval vessel)
                                 Awarded: RESTR EPD FOP 
SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

-20010929:	For violation of the UCMJ, Article 86 (3 specifications), absent from unit without authority, failing to go to appointed place of duty, and being UA from 20010905 - 20010917, Article 87, missing ship’s movement, Article 89, disrespect toward a superior commissioned officer, Article 91, disobeying a petty officer 1^st class, and Article 117 provoking gestures as evidenced by your CO’s NJP of 20010928.

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of service, should read:  “UNDER OTHER THAN HONORABLE CONDITIONS”
	Block 25, Separation Authority, should read: “MILPERSMAN 1910-146 [DRUG ABUSE]”
	Block 29, Dates of time lost during this period, should read: “TL – 01SEP05 TO 01SEP17

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

Decisional issues: The Applicant contends her characterization of service at discharge was inequitable; her youth, inexperience, and immaturity at the time led to poor judgment and inappropriate involvement with superiors, and are mitigating factors to her misconduct of record.

Decision

Date:  20120209	              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 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 one decisional issue for consideration by the NDRB.  Additionally, the NDRB completed a thorough review of the circumstances leading to the discharge, and the discharge process, to ensure the Applicant’s discharge met the pertinent standards of both equity and propriety.  

The Applicant’s enlistment record reflects entry into military service at age 19, without waiver to enlistment or induction standards.  The Applicant enlisted on an initial contract for 4 years with no extensions.  The Applicant’s record of service during her enlistment period reflects one NAVPERS 1070/613 retention-counseling warning being issued.  Furthermore, the Applicant’s service record documents four nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ), specifically: Article 86 (Absent without leave, 4 specifications of unauthorized absence); Article 87 (Missing movement); Article 89 (Disrespect toward a superior commissioned officer); Article 91 (Insubordinate conduct toward a petty officer); Article 92 (Failure to obey lawful order or regulation); Article 112(a) (Wrongful use, possession, etc., of a controlled substance, 2 specifications of wrongful use of marijuana and 1 specification of wrongful introduction of a controlled substance aboard a naval vessel); Article 117 (Provoking speech and gestures); and Article 134 (General Article, 1 specification of wrongful cohabitation and 1 specification of false swearing).

The Applicant’s violation of UCMJ Article 112(a) required mandatory processing for administrative separation in accordance with service policy for confirmed illegal drug usage.  The NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN).  The Applicant was notified - in writing - of the Command’s intent to process her for administrative separation due to Misconduct (Commission of a Serious Offense) in accordance with Article 1910-142 of the MILPERSMAN; Misconduct (Pattern of Misconduct) in accordance with Article 1910-140 of the MILPERSMAN; and Misconduct (Drug Abuse) in accordance with Article 1910-146 of the MILPERSMAN.  When notified of the proposed discharge action, the Applicant elected to waive her right to consult with a qualified legal defense counsel, to require that her case for retention be heard by an administrative hearing board, and elected to not provide any written statement to the separation authority regarding the proposed discharge.  The Applicant was advised that the least favorable characterization of service at discharge was under other than honorable conditions and that characterization was what the Command was recommending she be awarded.  After review by the Staff Judge Advocate, the Separation Authority determined that the evidence of record was sufficient in law and fact to support the proposed reasons for discharge.  As such, the Separation Authority directed the Applicant’s discharge with an Under Other Than Honorable Conditions characterization of service and directed that Misconduct (Drug Abuse) be the primary basis for discharge; he further directed that the Applicant be assigned an RE-4 re-entry code (not recommended for reenlistment).  

(Decisional Issues) (Equity) RELIEF NOT WARRANTED.  The Applicant contends her youth, inexperience, and immaturity at the time led to poor judgment and inappropriate involvement with superiors, and are mitigating factors to her misconduct of record.  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 NDRB recognizes that many of our service members are young at the time they enlist for service but most still manage to serve honorably.  While we understand that some members may be less mature than others, the NDRB does not view a member’s claim of youth, immaturity, or not understanding inappropriate relationships with a superior to be a mitigating factor or a sufficient reason for misconduct.  The service record documents the acknowledgment - in writing - of the U.S. Navy Drug Policy; the Applicant was fully aware of the zero-tolerance policy toward illegal drug use and was fully aware of the consequences for violating that policy.  Despite a Sailor’s prior record of service, certain serious offenses warrant separation from the Naval Service in order to maintain proper order and discipline - violation of Article 112(a) meets this standard.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge, but opted instead for the more lenient nonjudicial punishments and administrative discharge.  After the Applicant’s first positive urinalysis test and subsequent nonjudicial punishment, the Applicant continued to wrongfully use marijuana - while on restriction - which included introducing the illegal substance onboard a military facility.  The illegal drug use, coupled with the documented pattern of misconduct for unauthorized absence, missing movement, disrespect to superior commissioned officers, and insubordinate conduct, warranted a determination for separation vice retention and rehabilitation.  The record clearly documents willful misconduct and demonstrated that she was unfit for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  The NDRB determined an upgrade would be inappropriate.

When a Sailor's service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  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.  The Separation Authority ultimately directed a characterization of service of Under Other Than Honorable Conditions, which was warranted, and was consistent with the service norms for violation of Article 112(a).  The Applicant’s repetitive and deliberate misconduct, which forms the primary basis for determining the character of service, reflected a 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 by the Applicant is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and the discharge process, the NDRB found the discharge was proper and equitable as issued.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN 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