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NAVY | DRB | 2006_Navy | ND0601172

Original file (ND0601172.rtf) Auto-classification: Denied

ex-EMFA, USN
ND06-01172

Current Discharge and Applicant’s Request:

Application Received:                               20 060912
Characterization of Service:                       UNDER CONDITIONS
Narrative Reason for Separation:                           MISCONDUCT-
Discharge Authority :                                MILPERSMAN 3630620
Last Duty Assignment/ Command at Discharge:       USS SAMUEL GOMPERS AD37 ALAMEDA CA

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

Applicant’s Issues:
1. Enhance employment prospects and obtain veteran’s benefits
2. Post-service conduct

Decision:

By a vote of the Characterization shall .
By a vote of the Reason shall - DRUG ABUSE.

Date of Decision:                                            20070809
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:

Issue(s) 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ). The Applicant’s summary of service clearly documents that misconduct due to drug abuse was the reason she was discharged. No other Reason for Separation could more clearly describe why the Applicant was discharged. No change to the reason for discharge is warranted. “Uncharacterized” is not a reason for discharge. It is a statement, where appropriate in cases of servicemembers discharged within 180 days of entry onto active duty, that the servicemember’s service was not sufficiently long enough, or of a significant nature, to characterize as honorable, general (under honorable conditions), or under other than honorable conditions. The Applicant’s discharge characterization accurately reflects her service to this country. Normally, to permit relief, a procedural impropriety or inequity must have existed in the discharge. No impropriety or inequity occurred in the Applicant’s case. 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. The Board commends the Applicant’s efforts in maintaining sobriety during the last third of her post-service period; however, 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 found not to mitigate the misconduct which precipitated the 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. 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.

Summary of Service

Prior Service:
Inactive: USNR (DEP)                                19910413-19910423
Active:

Period of Service Under Review :
Date of Enlistment:                                 19910424
Years Contracted :                                   ;
Date of Discharge:                                  19921101
Length of Service
         Active:                                     01 Yrs 06 Mths 08 D ys ( d oes not exclude lost time)
         Inactive:                                            NONE
Time Lost During This Period:                      1 Day:    Days UA: 1 Days Confinement: None

Education Level:         Age at this Enlistment:                   AFQT : 55          Highest Rate/Rank: EMFN
Performance Evaluation Averages (number of marks):
                  Performance : 3.6 ( 1 )      Behavior : 2.8 ( 1 )                  OTA : 3.8

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL

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

19910429:        Applicant briefed on Navy's policy of drug and alcohol abuse.

19920827 :         NAVDRUGLAB, Oakland , CA, reported Applicant’s urine sample tested positive for methamphetamines and a mphetamines . [Extracted from Commanding Officer’s message dtd 19921019] .

1992 0902 :        Civil Conviction: Municipal Court for the Alameda Judicial District, County of Alameda, State of California for driving under the influence of alcohol.
         Sentence: 60 months probation on following conditions: 2 days in County Jail (weekend work program) , $1,084.00 fine plus $100.00 attorney fees and attendance at an d completion of NADSAP course.

19920910 :        NJP for violation(s) of UCMJ, Article 86: Absent without authority from 19920805 until 0715 19920806; Article 112a: Wrongful use of amphetamines on or about 19920806 ; Article 112a: Wrongful use of meth amphetamines on or about 19920806. Award: Forfeiture of $ 4 00.00 for 2 months, restriction and extra duty for 45 days, reduction to E- 2 .

19920923:        Medical Officer’s Drug/Alcohol Dependency Evaluation: (1) Drug and alcohol dependency seems doubtful after discussion with patient. (2) Penicillin allergy; (3) Normal exam; (4) Patient declines drug or A/C treatment. [Extracted from Commanding Officer’s message dtd 19921019].

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

19920114:        Drug Abuse interview, Naval Hospital Great Lakes.
         …now with 2 ETOH related incidents…1 ^st episode intoxicated boyfriend punched her in face 19910906 … seen in ER…BAC 0.122. Roommate recently complained of her coming in to BEQ intoxicated…claims overly affected because of Entex prescribed for URI…currently enrolled in CAAC … denies illicit substance abuse … not dependent by disclosures…recommend Local CAAC (Level II).

Elements of Discharge: [INVOLUNTARY]

Discharge Process :
Date Notified :                                        19921008
Reason for Discharge                                due to:
                                                      due to:
Least Favorable Characterization Authorized :

Date Applicant R esponded to N otification:                 19921008
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)

Commanding Officer R ecommendation (date):        ( 19921019 )
Separation Authority (date):      BUPERS ( 19921101 )
         Narrative reason directed :                          MISCONDUCT -
         Characterization directed:                         UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:                         19921101

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

Total Number of Pages:                            3

D escription of Other Documentation:
        Certificate of Graduation New Connection Outpatient Treatment program, dtd November 7, 2002
         Letter from G_ L. C_, M.S. New Connections Counseling & Recovery Services, dtd August 7, 2002

Pertinent Regulation/Law

A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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, 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

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NAVY | DRB | 2006_Navy | ND0601172

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