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

Docket No. ND12-00896

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20120313
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: REQUESTED, BUT NOT SPECIFIED
	
Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19980430 - 19980616  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19980617	Age at Enlistment:  20
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  19990514	Highest Rank/Rate:  STGSA
Length of Service:  00 Year(s)   10  Month(s)   28 Day(s)
Education Level:  12	AFQT:  93
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  NONE

NJP:  1

- 19990310:	Article 134 (False official statements)
	Article 112a (Wrongful use, possession, etc. of controlled substances, amphetamine, per NAVDRUGLAB msg dtg 1856Z Mar 99)
	Awarded: FOP RESTR EPD  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  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), Change 18, effective 12 December 1997 until 19 May 1999, 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 denies any drug usage and contends his discharge was based on one urinalysis in 11 months of excellent service with no other adverse actions.
2.	The Applicant contends his former commanding officer (CO) and facility were investigated due to an abnormally high number of discharges.	
3.	The Applicant contends his post-service achievements warrant consideration for an upgrade.

Decision

Date:  20121212	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 4-1 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 Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 134 (False official statements) and Article 112a (Wrongful use, possession, etc. of controlled substances, amphetamine).  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 waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant denies any drug usage and contends his discharge was based on one urinalysis in 11 months of excellent service with no other adverse actions.  The Applicant tested positive for amphetamines as the result of a urinalysis.  The Navy Drug Screening Laboratory (NDSL) goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released.  All three tests (screen, re-screen, and confirmation) must be positive before a positive result is reported to the command.  After carefully reviewing the Applicant’s documentation, the NDRB determined it was not sufficient to prove his urinalysis results were false.  There is zero tolerance for drug abuse, and separation is mandatory for violation of UCMJ Article 112a, despite a servicemember’s prior record of service.  The NDRB determined the Applicant’s discharge was proper and equitable.  Relief denied.

Issue 2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends his former CO and facility were investigated due to an abnormally high number of discharges.  The Applicant tested positive for amphetamines as the result of a urinalysis that was analyzed at a Navy Drug Screening Laboratory that had nothing to do with the Applicant’s CO or his facility.  Once the Applicant’s command received the positive test results, his CO found the Applicant guilty at NJP of violating UCMJ Articles 112a and 134 and properly followed Navy procedures by initiating separation processing.  The NDRB determined that all procedures were properly followed and that the characterization of service Under Other Than Honorable Conditions was completely in line with what others received for similar misconduct.  Relief denied.

Issue 3:  (Decisional) (Equity)  PARTIAL RELIEF WARRANTED.  The Applicant contends his post-service achievements warrant consideration for an upgrade.  The Applicant submitted two DD Form 214s documenting service in the Army and California National Guard, proof of receiving a Purple Heart Medal, Army Commendation Medals and Army Achievement Medals, a biographical sketch, and evaluation reports from his Army service.  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.  After a careful review of the Applicant’s post-service documentation and 

official service records, and taking into consideration the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds.  The NDRB voted unanimously to upgrade the characterization of service to General but by a vote of 4-1 voted to have the narrative reason for separation remain unchanged.  Partial relief warranted.  Full relief to Honorable and a change to the narrative reason were not granted because of the positive drug test result and subsequent NJP for violations of UCMJ Articles 112a and 134.

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 but not equitable.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) but 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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