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NAVY | DRB | 2006_Navy | ND0600953
Original file (ND0600953.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-YN2, USNR
Docket No. ND06-00953

Applicant ’s Request
The application for discharge review was received on 20060713 . The Applicant requests the Narrative Reason for Separation be changed to “ ADMIN & A GOOD RE-ENLISTMENT CODE .” The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area; however, the Board on its own motion determined to first conduct a documentary review because, regardless of results of the documentary review , the Applicant retains the right to petition for a personal appearance hearing provided that a new application for review is received by the Board within 15 years of the date of discharge. The Applicant did not designate a representative on the DD Form 293.
Decision

A documentary record discharge review was conducted in Washington, D.C. Metropolitan area on 20070628. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applic ant’s service was discovered by the NDRB. The Board’s vote was unanimous that the reason for discharge shall not change. The discharge shall remain Honorable by reason of misconduct due to drug abuse.




THIS IS THE CORRECT SHELL FOR MISCONDUCT DRUGS effective
27 March 2000 until 11 Feb 2001.

THE FINDING FOR Drug abuse, (Article 1910-146, previously 3630620)
 Change 31, dated 20 Feb 2001 , EFFECTIVE 12 FEB 2001 UNTIL 15 JUL 2001

THE SPN CODE IS EFFECTIVE 930628 - 040125

 SPN CODES:       NARRATIVE REASON ON DD214 -
 (Board)           GKK – MISCONDUCT         (Drug abuse which includes use,
possession, sale, intro, etc.
(No Board)                JKK - MISCONDUCT         (Drug abuse which includes use,
possession, sale, intro, etc.
(Board Waived)   HKK - MISCONDUCT         Drug abuse which includes use,
possession, sale, intro, etc.

A general discharge is written GENERAL (UNDER HONORABLE CONDITIONS)

PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Applicant’s Issues, as summarized by the Board

1. Discharge was punitive without a finding of guilt.
2. Denied proper counsel.
3. Administrative board members biased and influenced by command.
 4. Characterization of service inconsistent with reason for discharge; therefore, reason for discharge not supported by evidence , and should be changed to “ADMIN . ”
5. Desire G.I. Bill benefits.
6. Desire to re-enlist.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None
Period of Service Under Review :
Date of Enlistment: 19980331              Date of Discharge: 20010523

Length of Service (years, months, days):

          Active: 0 2 0 6 22
         Inactive: 00 07 0 2

Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 2 0

Years Contracted: 8

Education Level: 1 0                                  AFQT: 69

Highest Rate: YN2

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (4 )               Behavior: 3.5 ( 4 )                          OTA: 3.56

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) * : 9MM Pistol Sharpshooter Ribbon, 9MM Pistol Expert Ribbon, M14 Rifle Expert Ribbon, Sea Service Deployment Ribbon

*Service record also indicates Enlisted Surface Warfare Specialist, Letter of Commendation, Letter of Appreciation

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

HONORABLE/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .
Chronological Listing of Significant Service Events :

980331:  Applicant briefed on Navy's policy of drug and alcohol abuse.
981102 :  Commenced active duty for a period of 4 years .
990801:  Extended active duty obligation for an additional 12 months.
001101 :  NAVDRUGLAB, San Diego, CA , reported Applicant ’s urine sample, received 001026 , tested positive for cocaine.

Not dated:       Applicant refused nonjudicial punishment.
         [Extracted from Commanding Officer, Naval Air Reserve San Diego ltr dated 010516.]

 001214 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

001220 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
010324 :  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse , and by a vote of 2 to 1 that such misconduct warranted separation, and by unanimous vote recommended discharge with an honorable.
010402:  Applicant found medically qualified for separation.

 010516 :  Commanding Officer, Naval Air Reserve San Diego, directed discharge by reason of misconduct due to drug abuse with a characterization of service as honorable . Commanding Officer’s comments : “ YN2(SW) C_ ( Applicant ) refused nonjudicial punishment. I decided not to forward this case to trial by court-martial due to recent requirements to prove “knowing ingestion”. I concur with the findings of the Administrative Board. ”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010523 by reason of misconduct due to drug abuse (A and B) with a service characterization of honorable. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).
Issue 1 (Propriety/equity). The Applicant’s contention is factually and legally incorrect. Administrative separation does not constitute punitive action, and the record clearly demonstrates that no criminal sanction was imposed on him for his alleged drug abuse. Rather, the officer exercising court-martial authority over the Applicant specifically determined that administrative discharge processing was more appropriate than prosecuting the Applicant for alleged criminal misconduct. While the Applicant may disagree with, or dislike, the Administrative Discharge Board’s findings, those findings state a conclusion that a reason for discharge existed. They did not constitute a finding of guilt to a criminal offense. Relief denied on this issue.

Issue 2 (Propriety). The Applicant’s contention is factually incorrect. The Applicant was provided counsel for representation throughout his discharge proceedings, in accordance with his election of rights. Further, the Board found that the record demonstrated that Applicant’s counsel was zealous in representation and, considering the Administrative Discharge Board’s recommended characterization of service, extremely effective. Relief is not warranted on this issue.

Issue 3 (Propriety). There is no evidence in the record to support the Applicant’s uncorroborated assertion of bias or improper command influence. To the contrary, the record demonstrates that the Administrative Discharge Board was very thorough in determining the facts of Applicant’s case, and extremely conscientious in assessing the merits of the Applicant’s claims. Relief is not warranted on this issue.

Issue 4 (Propriety/Equity). While recognizing that it is unusual for a member being recommended for separation due to drug abuse to also be recommended for a characterization of service as honorable, the NDRB rejected the Applicant’s argument that such a recommendation demonstrates that the Administrative Discharge Board did not really believe that the reason for discharge existed. The Administrative Discharge Board explicitly indicated its specific, unanimous conclusion that the preponderance of the evidence supported the reason for discharge. Based on its own review of the record, the NDRB concurred. The NDRB advises that there is no authorized narrative reason of “ADMIN.” Regarding characterization of service, t he NDRB noted that the Applicant’s service record and performance evaluations were highly commendable and concluded that , in whatever manner his Administrative Discharge Board weighed the positive and negative aspects of his entire performance in order to determine an appropriate recommendation , the Applicant was in no way prejudiced by that Board’s recommendation for an honorable discharge. Relief is not warranted on this issue.

Issue 5. The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Issue 6. 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. 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. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the 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.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.
B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, Wrongful use, possession, etc., of controlled substances .
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .



PART IV - INFORMATION FOR THE APPLICANT
If you believe that 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 . 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 . ”

The names and votes of the members of the 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

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