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NAVY | DRB | 2006_Navy | ND0601181

Original file (ND0601181.rtf) Auto-classification: Denied

ex-MMFN, USN
ND06-01181

Current Discharge and Applicant’s Request:

Application Received:                               20 060914
         Characterization of Service:
         Reason for Discharge:                      -
         Discharge Authority:                       MILPERSMAN 1910-146
         Duty Assignment/Command at Discharge:    uss john c. stennis (cvn 74)

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
         Representation:
         Issues (as summarized by NDRB):          1. Applicant contends his discharge was improper because he had a
                                                      Negative urinalysis test.
                                                      2. Quality of Service (Equity)
                                                      3. Post Service (Equity)

Decision:

Date of Decision:                                            20 070719
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:
(BCD only) The Board found that clemency was:

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

Summary of Service :

Prior Service:
Inactive: USNR (DEP)                                19990424 - 19990822
Active:

Period of Service Under Review :
Date of Enlistment:                                 19990823
Years Contracted :                                   ;
Date of Discharge:                                  20050819
Length of Service
         Active:                                     05 Y RS 11 M OS 26 D AYS (Does not exclude lost time)
Time Lost During This Period:                     Days UA: 01

Education Level:
Age at this Enlistment:
AFQT:                                                 82

Highest Rate/Rank:                                   MM2

Performance Evaluation Averages (number of marks):
         Performance : 3.38(8) Behavior : 2.75 OTA : 3.01

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL, GOOD CONDUCT MEDAL, GLOBAL WAR ON TERRORISM MEDAL, EXPEDITIONARY MEDAL, NAVY UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON.

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

200 3 0 4 0 8 :        NJP for violation(s) of UCMJ:
         Article 86: ABSENT WITHOUT LEAVE
         Award: Forfeiture of $ 1136 .00 for 2 month(s), restriction for 45 days, reduction to E- 4 (Suspended for 6 months) .        No indication of appeal in the record.

20030408:        Counseling: Advised of deficiencies in performance and conduct (REASON), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

20050608:        NCIS Investigation Report: Applicant ’ s shipmate stated he smoked marijuana with Applicant on several occasions .

200506 1 3 :        Applicant ’ s shipmate/friend provided a random urine sample .

20050623:        Applicant invited several shipmates to a spaghetti dinner/party at his house. Allegations were made that the Applicant and his shipmates smoked marijuana at the party.

20050623:        Applicant’s shipmate/friend’s random sample taken on (20050613) came back positive for THC.

20050624:        Ship’s Master at Arms started an investigation based on Applicant’s shipmate’s positive urine sample.

20050624:        Several shipmates of Applicant who attended the Applicant’s party on (20050623) provided voluntary urine test.

20050624:        Applicant stated he took off work early and went to Seattle to visit a friend.

20050626:        Applicant provided a voluntary urine sample.

20050705:        Report Of Urine Sample Testing: Ap p licant ’ s sample tested negative. Two of the Applicant’s shipmates tested positive for THC.

20050804 :        NJP for violation(s) of UCMJ:
         Article 112A : WRONGFUL USE OF MARIJUANA
         Award: Forfeiture of $ 871 .00 for 2 month (s) , restriction and extra duty for 45 days , reduction to E- 3 .
         No indic ation of appeal in the record.

20050811:        C.O. USS JOHN C. STENNIS APPOINTMENT OF AN ADMIN BOARD ICO APPLICANT

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

NONE

Elements of Discharge: [ IN VOLUNTARY]

Discharge Process :
Date Notified :                                        20050805
Reason for Discharge              due to:
                                    due to:

Least Favorable Characterization:
Record Supports Narrative Reason :
Date Applicant R esponded to N otification:                 20050805
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
GCMCA Review

Administrative Board Date :                         20050815
         Findings, by preponderance of the evidence:      By due to .
                                                      By due to .

                                                      By separation warranted.
         Recommendation on Separation:             By
         Recommendation on Characterization:      By

Recommendation of Commanding Officer (date):     ( 20050817 )
Separation Authority (date):      MILPERSMAN 1910-146 ( 20050819 )
Narrative reason directed :
Characterization directed:
Date Applicant Discharged:                         20050819

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 :                            8
         Other Period of Service:
Related to Post-Service Period:
         Community Service :
         Education :
         Employment :
         Health /Medical :
         Character Statements:                               3
         Criminal Records Checks:
         Additional Statements from Applicant:
Other Documentation      (Describe Below)                 20

Total Number of Pages: 31

D escription of Other Documentation:
        Awards , urinalysis consent form, NAVDRUGLAB Report, performance evaluations,

Discussion

Applicant’s Issues as Summarized by the Board:
1. Applicant contends his discharge was inequitable because he had a
Negative urinalysis test.
2. Quality of Service (Equity)
3. Post Service (Equity)

Decisional Issues:

Issue 1 ( Equity ). The Applicant contends that he never used drugs. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. On 20050815 the Applicant was given an opportunity to have his case heard at an Administrative Board. The administrative board unanimously voted that the Applicant committed misconduct due to drug abuse and unanimously to separate the Applicant with an under other than honorable discharge characterization. For the Applicant’s edification, the absence of a positive drug test does not preclude disciplinary action for drug use. Violations of UCMJ Article 112a may be proved through the introduction of other evidence, e.g. witnesses who observed the abuse of illegal drugs. The NDRB found that the Applicant’s service was equitably characterized. Relief is denied.

Issue 2 ( ). 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. An under other than honorable condition 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 one retention warning, one nonjudicial punishment proceeding for UCMJ violation of Article 112a (Wrongful use, possession etc… of a controlled substance). The Applicant’s conduct which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. N avy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Issue 3 (Equity). Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. There is no law or regulation, which provided 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 recharacteriz a tion of a discharge to the extent such matters pr ovide 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 should be provided to the Board include proof of education pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of no involvement with civil authorities. As of this time the Applicant has not provided sufficient post service documentation to consider mitigating the misconduct that resulted in the characterization if discharge. Relief is 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.

Pertinent Regulation/Law

A. 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 (Wrongful use, possession etc… 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, 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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NAVY | DRB | 2006_Navy | ND0601181

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