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NAVY | DRB | 2006_Navy | ND0601029
Original file (ND0601029.rtf) Auto-classification: Denied

ex-BU3, USN
ND06-01029

 Current Discharge and Applicant’s Request :

Application Received:                               20 060711
Narrative Reason for Separation:                           MISCONDUCT
Character of Service:                               
Discharge Authority :                                MILPERSMAN 1910-146
Last Duty Assignment/ Command at Discharge:       CBU 405 NAS NORTH ISLAND CA

Applicant’s Request:
          Narrative Reason change to:                NONE REQUESTED
         Characterization chang e to:               
         Review Requested :                          
Representation:                                              vETERANS AFFAIRS (NO DOCS SUBMITTED)


Decision:

Date of Decision:                                            20070628      
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:
 Inactive: USNR (DEP)                                19960724 - 19970506
Active:                                              NONE
Period of Service Under Review :
Date of Enlistment:                                 19970507
Years Contracted :                                   ; 24 MONTHS OF EXTENSIONS
Date of Discharge:                                  20020830
Length of Service:                                  05 Yrs 03 Mos 24 Days
Time Lost During This Period:                     

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 51
Highest Rate/Rank:                                   BU2

Performance Evaluation Averages (number of marks):
 Performance :                                         4.0 (5)
Behavior :                                            3.2 (5)
OTA :                                                   3.49

Awards and Decorations (as listed on the DD Form 214):
SEA SERVICE DEPLOYMENT RIBBON(4); MERITORIOUS UNIT COMMENDATION; NAVY GOOD CONDUCT MEDAL; NAVY/MARINE CORPS ACHIEVEMENT MEDAL; EXPERT PISTOL SHOT MEDAL



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

20010105 :        NJP for violation of UCMJ:
          Article 134: Drunkenness - incapacitation for performance of duties.
         Award: Forfeiture of $811 for 2 months, restriction and extra duty for 45 days, reduction to E-4. Reduction suspended for 6 months.
         No indication of appeal in the record.

 20010105:        Retention Warning: No further information found in service record. [Extracted from Commanding Officer’s letter dated 20020823.]
20020801 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20020725, tested positive for cocaine.
20020823 :        NJP for violation(s) of UCMJ:
         Article 112a : Wrongful use, possession, etc. of controlled substance, cocaine.
         Award: Forfeiture of $ 841 for 2 month s , restriction and extra duty for 30 days , reduction to E-4.
         No indic ation of appeal in the record.



Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation
 No applicable records found.


Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                 
Date Notified :                                        20020823
Reason for Discharge                                MISCONDUCT – Drug abuse
                                                      MISCONDUCT – PATTERN OF MISCONDUCT
Least Favorable Characterization:                         
Date Applicant R esponded to N otification:                 20020823
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement                                   
GCMCA Review                               
Recommendation of Commanding Officer (date):     20020823
Discharge directed by (date):              COMMANDER, FIRST NAVAL CONSTRUCTION DIVISION 20020926
Narrative reason directed :                                   MISCONDUCT
 Characterization directed:                                 
Date Applicant Discharged:                         20020830


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 :                          7
         Other Period of Service:                                    0
Related to Post-Service Period:
          Community Service :                                   0
         Education :                                           0
         Employment :                                          0
         Health /Medical :                                       0
         Character Statements:                               1
         Criminal Records Checks:                                    0
         Additional Statements from Applicant:             2
Other Documentation      (Describe Below)                 0

Total Number of Pages:                              12


Applicant’s Issues as Summarized by the Board:
 The A pplicant submitted the following issues.
1. Post Service – Moved on in a positive manner, good people do make mistakes.
2. Single isolated incident – momentary lapse in judgment, would like discharge to reflect the positive contribution to armed forces.

Decisional Issues:

Issue 1 ( ): The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided one letter of recommendation from his wife as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in his characterization of discharge.

Issue 2 ( ): The Applicant states his discharge was based on one isolated incident. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The record documents the Applicant ’s in- service use of illegal drug s , which is the basis for his administrative separation . The Applicant waived his right to an administrative board and did not dispute the discharge or the characterization. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers t his discharge proper and equitable.

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 . 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.

Pertinent Regulation/Law
A . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until
2 5 January 2004 , 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 .

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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