Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND11-01712

ex-ET3, USN

Current Discharge and Applicant’s Request

Application Received: 20110712
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
		       Narrative Reason change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20000114 - 20000119  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20000120	Age at Enlistment:  18
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  20040112	Highest Rank/Rate:  ET2
Length of Service:  03 Years   11  Months   23 Days
Education Level:  12	AFQT:  73
Evaluation Marks:	Performance:  3.5 (4)	Behavior:  3.0 (4)	OTA:  3.10

Awards and Decorations (per DD 214):	NUC NAVY “E” (3) NDSM GCM AFEM SSDR Flag LOC

Periods of UA/CONF:  NONE

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

NJP:  1

- 20031205:	Article 112a (Wrongful use of controlled substance, Amphetamine, 1154 ng/ml, NAVDRUGLAB msg 042101Z DEC 03)
	Awarded: RIR FOP RESTR EPD Suspended:  NONE

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.	The Applicant seeks an upgrade to re-enlist in the Armed Forces.
2.	The Applicant contends misconduct was an isolated incident in an otherwise honorable period of service.
3.	The Applicant contends he has never used a controlled/illegal substance and was victimized by a faulty testing result. 
4.	The Applicant contends he was promised a General discharge.
5.	Post-service conduct.

Decision

Date:  20120405	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 Board 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’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Wrongful use of controlled substance, Amphetamine, 1154 ng/ml, NAVDRUGLAB msg 042101Z DEC 03).  The Applicant also had a pre-service drug waiver for using marijuana two times prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant exercised his rights to consult with a qualified counsel and submit a written statement, but waived his right to request an administrative board.

Issue 1:  (Nondecisional) The Applicant seeks an upgrade to re-enlist in the Armed Forces.  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 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.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends misconduct was an isolated incident in an otherwise honorable period of service.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service.  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 Applicant was found guilty of violation of Article 112a.  However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  The NDRB determined an upgrade would be inappropriate.  Relief denied.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends he has never used a controlled/illegal substance and was victimized by a faulty testing result.  Urinalysis specimens arriving at a Navy Drug Screening Laboratory (NDSL) are inspected for container damage or evidence of tampering, with particular attention to the condition of the box seals, which should be intact with the command’s Urinalysis Program Coordinator’s signature printed across the taped box seams.  After the package has passed this inspection, lab technicians unpack the urine specimens and carefully check that all bottles in the box correspond to the sample entries written on the accompanying chain of custody form (DD 2624). The bottles are then removed and inspected with the technicians noting any specimen container discrepancies, such as broken bottles, damage of tamper evidence seals, missing, incorrect, or incomplete social security numbers on the bottle labels or DD 2624s, and leakage of urine.  The lab reports all discrepancies back to the command.  If the discrepancies are 

serious enough to raise doubt in the validity of the results, the samples will not be tested.  The NDSL conducts an initial screening test on all specimens and negative specimens are discarded.  If a sample screens positive during the initial screening, it is then tested a second time.  If the sample screens negative during the second screening, it is discarded. If the sample screens positive a second time, it is considered a “presumptive positive.”  All “presumptive positive” specimens undergo a Gas Chromatography/Mass Spectrometry confirmation test.  The specimen must have tested positive in all three tests (screen, rescreen and confirmatory) and passed scrutiny in numerous reviews by drug testing experts prior to being certified as a positive result and reported to the originating command.  This certification, which is made by a senior chemist, is the final seal of approval necessary prior to reporting the specimen as a positive.  If the final certifying official has any doubt as to the accuracy, scientific validity or legal defensibility of the test results, the specimen is reported as negative in favor of the service member.  An NDSL radio message from 4 December 2003 to the Applicant’s command reported that the Applicant’s urine sample tested positive for Amphetamine, 1154 ng/ml, which exceeds the Department of Defense cutoff level of 500 ng/ml.  The Applicant provided no documentation to support his contention that he did not use amphetamine.  After a thorough review of the records, the NDRB determined that the Applicant’s discharge was proper and equitable.  Relief denied.

Issue 4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was promised a General discharge.  On 9 December 2003, the Applicant signed the notice that he was being recommended for separation for Misconduct - Drug Abuse.  He further acknowledged, in writing, that the least favorable characterization of service that he could receive was Under Other Than Honorable Conditions.  The Applicant did not specify who “promised” him a General discharge, but his commanding officer, on 6 January 2004, strongly recommended to the Separation Authority (Commander, Cruiser Destroyer Group Three) that the Applicant receive an Under Other Than Honorable Conditions discharge.  On 10 January 2004, Commander, Cruiser Destroyer Group Three approved the Applicant’s discharge for Misconduct - Drug Abuse with an Under Other Than Honorable Conditions characterization, and the Applicant was subsequently discharged on 12 January 2004.  The NDRB determined that the Applicant’s discharge was proper and equitable.  Relief denied.

Issue 5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant submitted one character reference letter.  The NDRB considers 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.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  Relief 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 Board found 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 for additional information.

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