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

Docket No. ND11-00615

ex-AN, USN

Current Discharge and Applicant’s Request

Application Received: 20110104
Characterization of Service Received: (per DD 214) UNDER OTHER THAN 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 OR GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to: NONE REQUESTED

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20000731 - 20001119  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20001120	Age at Enlistment:  20
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20031010	Highest Rank/Rate:  AN
Length of Service:  02 Year(s)   10  Month(s)   21 Day(s)
Education Level:  12	AFQT:  40
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM 

Periods of CONF:  NONE

NJP:  1
- 20010516:	Article 86 (Absence without leave; Unauthorized absence from appointed place of duty)
	Awarded: Correctional Custody (30 days)             Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  1

-20010516:	For commanding officer’s NJP on 20010516 for violation of UCMJ Article 86 (UA)

Administrative Corrections to the Applicant’s DD 214

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

	Block 29, Dates of Time Lost During This Period, should read “03JUL03 TO 03JUL10”
	
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:	☐

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

Applicant’s Issues

Decisional issues: The Applicant contends his characterization of service at discharge was inequitable; personal circumstances, including his lack of desire to be in the military and ongoing stress of his work center and civilian legal problems led to his deliberate misconduct in an effort to be discharged.  Furthermore, the Applicant contends that he was misled and seduced to join by his recruiter and that he did not receive the bonus he believes he warranted.

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 (equity) for the NDRB’s consideration, however, the NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant’s enlistment record reflects entry into military service at age 18, with a waiver to enlistment and induction standards due to failing medical standards.  The Applicant enlisted on an initial contract for 4 years with no extensions for a guarantee of “A” School training as an Aviation Support Equipment Technician.  The Applicant was discharged after completing 2 years and 10 months of his four year obligation.  The Applicant’s record of service during his current enlistment period reflects one NAVPERS 1070/613 retention-counseling warning being issued.  Furthermore, the Applicant’s service record documents a nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ), specifically: Article 86 (Absent without leave - unauthorized absence by failure to be at his appointed place of duty).  In the absence of a complete discharge package in the service record, the presumption of regularity of governmental affairs was applied by the NDRB.  The Applicant’s statement on his DD Form 293 states that he purposely went “UA” and smoked “a blunt” (marijuana) in order to be “kicked out of the Navy.”  The use of marijuana is a violation of Article 112(a) (Wrongful use, possession, etc of a controlled substance) of the UCMJ.  Based on the Applicant’s violation of Article 112(a), processing for administrative separation was mandatory by service policy.  The NDRB was unable to verify the Applicant’s notification and election of rights in conjunction with the discharge action; however, the Applicant’s DD Form 214 documents a separation code of “GKK,” which specifies that the Applicant elected his right to, and was afforded, an administrative discharge hearing board.  Moreover, the board notification procedure is required for all separation actions in which an Under Other Than Honorable Conditions characterization of service at discharge is being proposed.  As such, the Applicant was afforded a right to legal defense counsel for the conduct of his administrative board and was afforded the opportunity to present his case for retention in service and to present a case in his defense of the alleged misconduct (drug abuse).  The three-member board determined that a preponderance of the evidence presented supported a finding that the alleged misconduct did occur and that retention was not warranted.  Additionally, the board provided a recommended characterization of service at discharge to the Separation Authority.  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 reason for discharge and concurred with the board’s findings.  The Separation Authority directed the Applicant’s discharge Under Other Than Honorable Conditions pursuant to Article 1910-146 of the Naval Military Personnel Manual (MILPERSMAN); he also directed that the Applicant be assigned an RE-4 re-entry code (not recommended for reenlistment).

Decisional Issues (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his characterization of service at discharge was inequitable; personal circumstances, including his lack of desire to be in the military and ongoing stress of his work center and civilian legal problems led to his deliberate misconduct in an effort to be discharged.  Furthermore, the Applicant contends that he was misled and seduced to join by his recruiter and that he did not receive the bonus he believes he warranted.

Propriety - In the absence of a complete discharge package in the service record, the presumption of regularity of governmental affairs was applied by the NDRB.  Based on the Applicant’s DD Form 214, he was recommended for administrative separation in accordance with Article 1910-146 of the MILPERSMAN.  The Applicant exercised his right to appear before an administrative hearing board and refute the misconduct as alleged.  The Applicant openly contends that he used illegal drugs (marijuana) and was in an unauthorized absence status.  Processing for administrative separation for illegal drug use was mandatory by established (and acknowledged) service policy.  Based on the documentation of record and the Applicant’s own statement, the NDRB determined that the separation was proper and the narrative reason for separation was accurate.  No relief based on propriety is warranted.

Equity - The Applicant contends that he was misled and seduced to join by his recruiter and that he did not receive the bonus he believes he warranted.  The Applicant signed his enlistment contract at age 20 on 31 July 2000.  He was scheduled to commence active duty training on 20 September 2000 with a guarantee for training as an Aviation Support Equipment Technician with a $5,000 bonus and 5-year enlistment agreement for shipping no later than 21 September 2000.  On the day he was to ship to training, the Applicant states that he tested positive for marijuana.  The wrongful use of a controlled substance negated his contract and required a waiver to continue his enlistment.  The Applicant received the waiver for his wrongful drug use and was re-contracted with an assigned shipping date of 60 days later - as required by service regulations.  Under the new contract, the Applicant agreed to a contractual obligation for 4 years of service, in the same occupational field, but without the bonus.  The Applicant acknowledge all of this by his witnessed signature on both the new guarantee annex to his service contract and a NAVPERS 1070/613 service record counseling that documented the changes and his acknowledgment.  Based on a detailed review of the service record, the NDRB found this issue to be without merit, not warranting relief as requested.      

Equity - The Applicant contends the characterization of his discharge should be upgraded, because he suffered a lot of setbacks due to personal legal problems (incarcerated by civilian authorities for 1 year, before being acquitted and returned to military custody), work center related stress, and his lack of desire to remain in the Navy.  The NDRB recognizes that serving in the military is challenging.  Most service members, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those service members, commanders and Separation Authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The Applicant’s service record documents that he was surrendered to civilian legal authorities pursuant to a valid warrant for his arrest.  While in custody of the civilian authorities, the Applicant was service-record transferred from his assigned deployable ship to the local installation command for record administration, pending the outcome of the civilian court.  He remained in the hands of civilian authorities for 1 year before being acquitted of all charges and released back to military authority.  Additionally, the Applicant contends that he suffered undue stress in his work center, which resulted in his actions to be discharged; however, he provided no documentation or specifics to this contention.  The service record reflects that the Applicant was returned to military custody in July 2003 after being acquitted of the civilian charges.  He was approved for separation on 22 September 2003.  In the intervening months, the Applicant opted to enter into an unauthorized absence status, wrongfully used a controlled substance (marijuana), was notified of separation, and had an administrative board.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his deliberate misconduct.

Despite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval Service in order to maintain good order and discipline.  Violation of Article 112(a) is one such offense, requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service.  Moreover, this action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial.  The Applicant’s command did not opt to pursue a punitive discharge but instead chose the more lenient administrative discharge process.  Although a Sailor is typically disciplined for violation of Article 112(a) by at least a nonjudicial punishment, neither judicial punishment (court-martial) nor nonjudicial punishment (NJP) are required for administrative discharge processing and separation.

Characterization of service at discharge is the recognition of a Sailor’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation.  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.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from that conduct expected of members of the Naval Service.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, reflected acts or omission that constituted a significant departure from that conduct expected of a service member.  The Applicant’s illegal drug use represented a specific act that did constitute a significant departure from the conduct expected of a Sailor.  By a vote of 5-0, the NDRB determined that the narrative reason for separation and the resulting characterization of service at discharge was proper, was equitable, was warranted, and was and still remains consistent with the characterization of discharge given others in similar circumstances.  Accordingly, 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 the discharge process, the NDRB determined that the discharge was proper and equitable.  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.

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.

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