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NAVY | DRB | 2006_Navy | ND0601019
Original file (ND0601019.rtf) Auto-classification: Denied

ex-CMCA, USN
ND06-01019

 Current Discharge and Applicant’s Request :

Application Received:                               20 060725
Narrative Reason for Separation:                           MISCONDUCT
Character of Service:                               
Discharge Authority :                                MILPERSMAN 1910-146
Last Duty Assignment/ Command at Discharge:       LANTORDDET NORFOLK VA

Applicant’s Request:
          Narrative Reason change to:                NONE REQUESTED
         Characterization chang e to:               
         Review Requested :                          
Representation:                                             


Decision:

 Date of Decision:                                            20 070621
Location of Board:                                  Washington D.C.
Complete Service Record:                                   
Complete Medical Record:                          
Complete Discharge Package:                       

Regarding propriety, the Board found the discharge:     
Regarding equity, the Board found the discharge:        

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



Summary of Service :

Prior Service:
 Active: USA                                          19930729 – 19930913      ELS
Inactive: US N R (DEP)                                19980716 – 19980722     
         USNR (DEP)                                  19990119 – 1999 0126      

Period of Service Under Review :
Date of Enlistment:                                 19990127
Years Contracted :                                   ;      
Date of Discharge:                                  20001207
Length of Service:                                  01 Yrs 10 Mos 11 Days Does not exclude lost time, if any.
Time Lost During This Period:                     

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 33
Highest Rate/Rank:                                   CMCN

Performance Evaluation Averages (number of marks):
 Performance / Behavior/OTA :                         1.5 (2) / 1.0 (2) / 1.67

Awards and Decorations (as listed on the DD Form 214): NONE *

*Service Record indicates Applicant earned “Marksman Rifleman Ribbon.”

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19990113:        Applicant provided handwritten statement continuation of SF 86 regarding USNR (DEP) discharge for marijuana use, acknowledged understanding of “zero tolerance” drug policy, pledged to “never use or try any drug,” and expressed desire to enlist in the United States Navy.

19990119:        Waiver granted for USNR (DEP) discharge for drug use (marijuana).

 20001101 :        NJP for violation(s) of UCMJ:
          Article 112a : Wrongful use of a controlled substance. No further information found in service record. [Extracted from Evaluation Report and Counseling Record dated 20001205.]
         No indic ation of appeal in the record.


Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation
Record not available.


Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                 
Date Notified :                                       
Reason for Discharge                               
Least Favorable Characterization:                         

Date Applicant R esponded to N otification:                
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                       (PER DD FORM 214 BLOCK 26, SEPARATION CODE)
Obtain Copies                             
Submit Statement(s)                       

Administrative Board Date:                         NOT APPLICABLE
Recommendation of Commanding Officer (date):          
Separation Authority (date):                         
         Narrative reason directed :                         
         Characterization directed:                        
Date Applicant Discharged:                         20001207


Additional Information Considered by Board

 Type of d ocumentation submitted by t he Applicant and considered by the Board
        Document Type                                        #Pages
 Related to Period of Service Under Review :
          Service/Medical Record :                              1
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                       0
         Character Statements:                               0
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             0
Other Documentation      (Describe Below)                 0

Total Number of Pages:                              1

D escription of Other Documentation: NONE      

Applicant’s Issues as Summarized by the Board:
 1. Post service conduct

Decisional Issues:

Issue 1 ( ). There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided any documentation for the Board to consider mitigating the misconduct which led to the Applicant’s discharge .

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. There is credible evidence in the record that the Applicant used illegal drugs , a violation of the UCMJ, Article 112a . Mandatory processing for separation is required for Sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Board advises the Applicant that violations of Article 112a are considered serious offenses for which a punitive discharge is authorized if adjudged at a special or general court-martial. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

 N ot Applicable .


Pertinent Regulation/Law

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), 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.
C. 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 .

ADDENDUM: Information for the Applicant
Complaint Procedures : 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 . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 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.

Employment / Educational Opportunities : 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.

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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: 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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