Search Decisions

Decision Text

NAVY | DRB | 2006_Navy | ND0601171
Original file (ND0601171.rtf) Auto-classification: Denied

ex-BU3, USNR
ND06-01171

 Current Discharge and Applicant’s Request :

Application Received:                               20 060907
Characterization of Service:                      
Reason for Separation:                               -

Discharge Authority :                                MILPERSMAN 1910-146
Last Duty Assignment/ Command at Discharge:       NAVY RESERVE CENTER EARLE

Applicant’s Request:    
         Characterization change to:              
         Narrative Reason change to:              
         Review Requested:                         
         Representation:                             


Decision:

 Date of Decision:                                            20 07 07 09
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 .


Applicant’s Issues as Summarized by the Board:

 1. Equity – Isolated Incident with otherwise stellar service.
2. Equity – Not given a board to prove that he didn’t use drugs.
3. Equity – Post-service.

Summary of Service :

Prior Service:
 Inactive:         USNR (Dep)                                  19870430 - 19870923 ELS
         USNR (R)                                     19890119 – 20010730
Active:          USARMY                              19881101 - 19890118

Period of Service Under Review :
Date of Enlistment:                                 20010731
Years Contracted :                                   8 YEARS
Date of Discharge:                                  20051012
Length of Service                 
         Active:                                      0 Yrs 0 Mths 29 D ys
         Inactive:                                            4 Yrs 1 Mths 1 2 D ys

Time Lost During This Period:                      None

Education Level:                                    12
Age at this Enlistment:                                     35
AFQT:                                                 38
Highest Rate/Rank:                                   BU3

Performance Evaluation Averages (number of marks):
                                     Performance : 4.0 ( 4 ) Behavior : 3.0 ( 5 ) OTA : 3.6

Awards and Decorations (as listed on the DD Form 214): NO DD214



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

20050801 :         NAVDRUGLAB, Jacksonville , FL , reported Applicant’s urine sample, received 20050726 , tested positive for THC.

20 051101 :        Letter from Applicant to Commander Navy Personnel Command, Via Naval Reserve Center, objecting to his discharge because he was not given an opportunity to prove that the Navy drug test was incorrect.



Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :                                 
Date Notified :                                        20050804
Reason for Discharge                                due to:
Least Favorable Characterization Authorized :    

Date Applicant R esponded to N otification:                 20050913
Rights E lected at N otification :
Consult with Counsel                      
Administrative Board                      
Obtain Copies                             
Submit Statement(s) (date)                               
GCMCA Review                               

Administrative Board Date :                         NO BOARD Applicant did not respond to the notification until his 30 days had elapsed. Because he had not previously requested an extension, COMNAVPERSCOM treated his failure to respond as a waiver.
Commanding Officer R ecommendation (date):        200509 13
Separation Authority (date):      COMNAVPERSCOM (20051005)
         Narrative reason directed :                         
         Characterization directed:                        
Date Applicant Discharged:                         20051012



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 :                              03
         Other Period of Service:                                    13
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:                              16

D escription of Other Documentation:
       


Applicant’s Issues as Summarized by the Board:
1. Equity – Isolated Incident with otherwise stellar service .
2. Equity – Not given a board to prove that he didn’t use drugs .
3. Equity – Post-service .

 The Applicant states his discharge was based on “one isolated incident in 4 years of Navy Reserves,” with otherwise good service. Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. 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. There is credible evidence in the record that the Applicant used illegal drugs. 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 his discharge proper and equitable. Relief denied.
The Applicant requests upgrade of his discharge because he was not given an opportunity to prove that he didn’t use drugs at an Administrative Discharge Board. The Applicant was served with notice that his command intended to process him for Administrative Discharge on August 6, 2005. In that notice, he was informed that he had a period of 30 days to respond to the notice, that failure to respond would constitute a waive of all rights, and further that processing could continue in his absence. The Applicant did not respond to the notice until September 13, 2005. The Applicants command forwarded the package to the Separation Authority, Commander, Navy Personnel Command (COMNAVPERSCOM) requesting separation of the Applicant. COMNAVPERSCOM was informed that the Applicant had submitted a late request for an Administrative Discharge Board. The Separation Authority chose to treat the Applicants failure to respond within 30 days as a waiver of rights. 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 his discharge proper and equitable. Relief denied.

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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient to mitigate the conduct, which precipitated the discharge. Relief denied.
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 11, effective 29 April 2005 until Present, 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 (use of a controlled substance) .

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, provi ded 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 grante d 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

Similar Decisions

  • NAVY | DRB | 2006_Navy | ND0601029

    Original file (ND0601029.rtf) Auto-classification: Denied

    Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation No applicable records found. Elements of Discharge: [INVOLUNTARY] Discharge Process: Date Notified:20020823Reason for Discharge MISCONDUCT – Drug abuseMISCONDUCT – PATTERN OF MISCONDUCTLeast Favorable Characterization: Date Applicant Responded to Notification: 20020823Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement GCMCA...

  • NAVY | DRB | 2006_Navy | ND0601081

    Original file (ND0601081.rtf) Auto-classification: Denied

    By a vote of the Reason for Discharge shall - .Summary of Service:Prior Service: Inactive: NONEActive: NONE Period of Service Under Review: Date of Enlistment: 20000330Years Contracted: YRSDate of Discharge: 20040823Length of Service: 04Yrs 04 Mos 24 DaysTime Lost During This Period: Education Level: Age at this Enlistment: AFQT: 32Highest Rate/Rank:SK3Performance Evaluation Averages (number of marks):Performance: 3.4 (5)Behavior: 3.2 (5)OTA:3.33Awards and Decorations (as listed on the DD...

  • NAVY | DRB | 2006_Navy | ND0601091

    Original file (ND0601091.rtf) Auto-classification: Denied

    Regarding equity, the Board found the discharge: Discussion Narrative reason change: Commander Naval Personnel directed the Applicant’s discharge by reason of misconduct due to drug abuse after reviewing the administrative discharge package forwarded by U. S. Naval Security Force, Bahrain. The record documents his administrative discharge board and commanding officer’s recommendation for separation by reason of misconduct by drug abuse with a characterization of service as under other than...

  • USMC | DRB | 2006_Marine | MD0601044

    Original file (MD0601044.rtf) Auto-classification: Denied

    ex-LCPL, USMCMD06-01044Current Discharge and Applicant’s Request: Application Received: 20060804Narrative Reason for Separation: COMMISSION OF A SERIOUS OFFENSE/WAIVED BOARD Character of Service:Discharge Authority: MARCORSEPMAN 6210.6Last Duty Assignment/Command at Discharge: 8THESBN 2DFSSGApplicant’s Request:Narrative Reason change to: NONEREQUESTEDCharacterization change to:Review Requested:Representation: Decision: Date of Decision: 20070614Location of Board: Washington D.C.Complete...

  • NAVY | DRB | 2008_Navy | ND0801091

    Original file (ND0801091.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)19870430 - 19870923ELSActive: 19881101 – 19890118 (Characterization NFIR)Inactive: USNR (R) 19890119 - 20010730 Period of Service Under Review: Date of Enlistment: 20010731Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20051012Highest Rank/Rate:BU2Length of Service: Active:Years Months29 Days Inactive: 04 Years 01Month 12 DaysEducation...

  • NAVY | DRB | 2007_Navy | ND0700923

    Original file (ND0700923.rtf) Auto-classification: Denied

    Issues 3 & 4: ().A Sailor may be separated for a commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation. The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by the award of one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 134 (Wrongfully commit an indecent act).A violation of...

  • USMC | DRB | 2009_Marine | MD0901893

    Original file (MD0901893.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB)DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2006_Navy | ND0601197

    Original file (ND0601197.rtf) Auto-classification: Denied

    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. Recommendation on Separation: By Recommendation on Characterization: By Commanding Officer Recommendation (date): (20050701)Separation Authority (date):COMNAVPERSCOM (20050822)Reason for discharge directed: -...

  • NAVY | DRB | 2006_Navy | ND0601173

    Original file (ND0601173.rtf) Auto-classification: Denied

    Despite a servicemember’s prior record of service, certain serious offenses, though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Elements of Discharge: [INVOLUNTARY] Date Notified:NOT FOUND IN RECORDReason for Discharge Least Favorable Characterization Authorized: Date Applicant Responded to Notification: NOT FOUND IN RECORDRights Elected at Notification:Consult with Counsel Administrative Board SEPARATION CODE INDICATES BOARD...

  • NAVY | DRB | 2006_Navy | ND0601113

    Original file (ND0601113.rtf) Auto-classification: Denied

    Service Record Entries Related to Characterization of Service or Narrative Reason for Separation Record not available. 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. Additionally, the NDRB does not have the authority to...