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NAVY | DRB | 2006_Navy | ND0601093
Original file (ND0601093.rtf) Auto-classification: Denied

ex-SMSN, USN
ND06-01093

 Current Discharge and Applicant’s Request :

Application Received:                               20 060816
Reason for Separation:                              misconduct – DRUG ABUSE
Character of Service:                               
Discharge Authority :                                MILPERSMAN 1910-146
Last Duty Assignment/ Command at Discharge:       navphibase little creek va

Applicant’s Request:
          Narrative Reason change to:                NONE REQUESTED
         Characterization chang e to:               
         Review Requested :                          
         Representation:                                    
         Issues (as summarized by NDRB):           1. Single incident not characteristic of entire service
                                                      2. Post-service conduct


Decision:

 Date of Decision:                                            20070719
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 Reason for Discharge shall - .


Summary of Service :

Prior Service:
 Inactive: USNR (DEP)                                19910412 - 19920126
Active: USN                                 19920127 - 19951227
Period of Service Under Review :
Date of Enlistment:                                 19951228
Years Contracted :                                   ;      
Date of Discharge:                                  19990210
Length of Service:                                  03 Yrs 01 Mos 13 Days ( does not exclude lost time, if any)
Time Lost During This Period:                     

Education Level:                                   
Age at this Enlistment:                                    
AFQT:                                                 42
Highest Rate/Rank:                                   SM3

Performance Evaluation Averages (number of marks):
                   Performance : 3.8 (4)      Behavior : 3.8 (4)                  OTA : NOT AVAILABLE
Extracted from:
Applicant’s Supporting Documents Other:      

Awards and Decorations (as listed on the DD Form 214): SEA SERVICE DEPLOYMENT RIBBON(3 RD ), NAVY "E" RIBBON(2 ND ), NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL, FIRST GOOD CONDUCT AWARD FOR PERIOD ENDING 96JAN27, ARMED FORCES SERVICE MEDAL, NATO MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, ENLISTED SURFACE WARFARE SPECIALIST


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

19951228:        Reenlisted this date for term of 4 years.

 19981026 :         NJP for violation(s) of UCMJ:
          Article 112a: Wrongful use, possession etc of controlled substances on 19980923.
         Award: Forfeiture of $ 716 .00 for 2 month s , restriction and extra duty for 45 days , reduction to E- 3 .
         No indic ation of appeal in the record.


Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation
None.

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                  ADMINISTRATIVE BOARD PROCEDURE
Date Notified :                                        19981109
Reason for Discharge :                                MISCONDUCT -
Least Favorable Characterization:                         

Date Applicant R esponded to N otification:                 19981109
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement(s) (date)                         

Administrative Board Date:                         19990108
         Findings, by preponderance of the evidence:      By 3-0 VOTE - .
         Recommendation on Separation:             By 3-0 VOTE      
         Recommendation on Characterization:      By 2-1 VOTE
                                                     
Commanding Officer Recommendation (date):        NOT APPLICABLE
Separation Authority (date):      CO, NAVAL AMPHIBIOUS BASE LITTLE CREEK ( 19990125 )
R eason directed :                                              MISCONDUCT -
Characterization directed:                                  GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:                         19990210


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 :                              17
         Other Period of Service:                                    27
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:                              44

D escription of Other Documentation: NONE             

Discussion

Decisional Issues:

Issue 1 ( ). When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by nonjudicial punishment for violation of Article 112a of the UCMJ, a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial. There is credible evidence in the record that the Applicant used illegal drugs, and Applicant does not deny such use. 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. Instead, the Applicant received a general discharge, presumably recommended by his Administrative Discharge Board in light of his overall service record. 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. An honorable characterization of service is not appropriate. Relief is not warranted on this issue.

Issue 2 ( ). There is no law or regulation which provides that a discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. However, 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 any 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 records, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of the type of verifiable documentation that should have been provided to receive consideration for relief based on post-service conduct. The Applicant’s uncorroborated statements concerning post-service conduct were found not to mitigate the misconduct for which he was discharged. Relief not warranted on this issue.

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.
Minority Opinion


Pertinent Regulation/Law

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 to 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.
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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