ex-YN2, USN

Current Discharge and Applicant’s Request

Application Received: 20120627
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:  Characterization change to: 
		       Narrative Reason change to: 

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20000713 - 20000917  	Active:		20000918 - 20040920  HON
				USN	20040921 - 20070409  HON
Period of Service Under Review:
Date of Current Enlistment:  20070410	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080820	Highest Rank/Rate:  YN2
Length of Service:   Year(s)     Month(s)   11 Day(s)
Education Level:  	AFQT:  78
Evaluation Marks:	Performance:  NOB	Behavior:  NOB	OTA:  NOB

Awards and Decorations (per DD 214):	 (3)  (2)  FLOC 

Periods of UA:  NONE / CONF:  

NJP:  	SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “00 09 18”
	  “07 10 29”
	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (3), GOOD CONDUCT MEDAL (2), NATIONAL DEFENSE SERVICE MEDAL, FLAG LETTER OF COMMENDATION, OVERSEAS SERVICE RIBBON (2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, LETTER OF ACHIEVEMENT (2)”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000918 UNTIL 070409”
	  “17MAY01 TO 21MAY01”

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

1.	The Applicant contends she served honorably for seven years.
2.	The Applicant contends she never used an illegal drug, and the urinalysis bottle’s seal was broken.
3.	The Applicant contends she was sexually assaulted, had to stop taking her prescribed medication, and suffered harassment from co-workers for having a rape kit done.

Decision

Date:  20130418		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial during her final enlistment period.  The Applicant  a pre-service drug waiver for using illicit drugs prior to entering the Navy.  Based on the drug policy violation, processing for administrative separation is mandatory.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.  However, the Applicant has a separation code of GKK on her DD Form 214, which indicates she appeared before an administrative separation board.

:  (Decisional) ()  .  The Applicant contends she served honorably for seven years.  The Applicant received Honorable discharges for her first two enlistments from September 2000 until April 2007.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  During her third enlistment, she violated the Navy’s zero-tolerance drug policy and was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB presumed regularity that the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends she never used an illegal drug, and the urinalysis bottle’s seal was broken.  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 Form 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.  The Applicant’s separation code of GKK indicates that she had an administrative board.  During her administrative separation board, she would have had the opportunity to mount a defense against the charges to include the validity of the urinalysis testing.  The Applicant submitted no evidence to support her contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  Relief denied.

:  (Decisional) ()  .  The Applicant contends she was sexually assaulted, had to stop taking her prescribed medication, and suffered harassment from co-workers for having a rape kit done.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition or diagnosis to be of sufficient nature to excuse the Applicant’s misconduct.  Also, the Applicant submitted a response to her e-mail to the Naval Inspector General Hotline as supporting documentation.  The Naval Inspector General’s response directed the Applicant to address this matter locally with her Equal Opportunity Office and/or her Victims Advocate Office.  While the Applicant may feel that her work environment was a contributing factor to her misconduct, it does not mitigate her disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating she was unsuitable for further service.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 2 June 2008 until 9 November 2009, 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), 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