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NAVY | DRB | 2007_Navy | ND0700004

Original file (ND0700004.rtf) Auto-classification: Denied

ex-ACAN, USN
ND07-00004

Current Discharge and Applicant’s Request:

Application Received:                               20 060927
         Characterization of Service:
         Reason for Discharge :                      -
         Discharge Authority :                       MILPERSMAN 1910-146
         Duty Assignment/ Command at Discharge:    AIR OPERATIONS ATSUGI, JAPAN

Applicant’s Request:
         Characterization change to:
         Narrative Reason change :
         Applicant’s Issues :                1. Board did not have authority to consider Pat tern of Misconduct, could                                            only consider drug abuse and commission of a serious offense.
                                                      2. Letter of notification was not specific enough for the Applicant to                                                                defend against.
                                                      3. Inappropriate evidence utilized at Administrative Board.
                                                      4. Applicant contends he did not knowingly ingest the controlled                                                               substance.


Decision:

By a vote of the Characterization shall .
By a vote of the Reason for Discharge shall - .

Date: 20070926 DOCUMENTARY REVIEW Location: WASHINGTON D.C. Representation: Civilian Counsel

DISCUSSION

Issue 1 ( ): The Applicant contends that the Administrative Board did not have the authority to consider a pattern of misconduct. T he Board did note in the Administrative Board’s appointment letter that it did state only drug abuse and commission of a serious offense, even though the Applicant had been notified of a pattern of misconduct in addition. Since the board only ruled on two of the three causes for discharge which the Applicant was notified of it is difficult to determine which one was not ruled on. It is the Board’s determination that the Administrative Board ruled on only the charges which they specifically were empowered to rule upon. Never-the- less this point is mute as a result of the discharge authorities selection of drug abuse as the Applicant’s reason for discharge. The record documents the Applicant’s violation of UCMJ Article 112a ( wrongful use of a controlled substance ). In the Applicant’s case, the Board could discern no impropriety (which resulted in p rejudice against the Applicant) and therefore considers hi s discharge proper .

Issue 2 ( ): The Applicant contends that his notification letter was not specific enough for his defense. The applicant was properly delivered the notice of his intended recommendation for separation in accordance with the MilPersMan. On this notification and election of rights form the Applicant elected to consult counsel and be represented at his administrative discharge board by counsel. Based upon the record, nothing indicates that the Applicant’s notification was in any way inconsistent with the standards processing for administrative discharge . T he Board could discern no impropriety with regard to this issue and therefore considers his discharge proper.

Issue 3 (Propriety): The Applicant contends that inappropriate evidence was allowed at his Administrative Discharge Board through the introduction of his prior service juvenile record. The evidence in question was discovered during the Applicant’s enlistment during his NCIS background investigation. The Board determined that this information was not prejudicial to the finding of misconduct due to drug abuse, the actual basis for the Applicant’s discharge.

Issue 4 (Propriety): The Applicant contends that he did not knowingly ingest a controlled substance. In reviewing discharges, the Board presume s regularity in the conduct of g overnment affairs unless there is substantial credible evidence to rebut th e presumption . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant asserted at his Administrative Board that his girlfriend spiked his drink. The Administrative Board who observed the live testimony and ask questions did not find this account credible. The Applicant has provided no further information to the Board. S eparation processing is mandatory for Sailors who abuse illegal drugs. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a Dishonorable Disc harge and up to 5 year s of imprisonment if adjudicated by a court martial. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. In the Applicant’s case, the Board could di scern no impropriety and therefore considers the discharge proper.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)                                20020104 - 20020224
Active:

Period of Service Under Review :
Date of Enlistment:                                 20020225
Years Contracted :                                   ; Extension:
Date of Discharge:                                  20060118
Length of Service
         Active:                                     3 Yrs 10 Mths 24 D ys
         Time Lost During This Period:

Education Level:
Age at this Enlistment:
AFQT:                                                 66
Highest Rate/Rank:                                   AC3

Performance Evaluation Averages (number of marks):
                                                      Performance : 4. 2 Behavior : 3.0 OTA : 3.5 3 (5)

Awards and Decorations (as listed on the DD Form 214): NATIONAL DEFENSE SERVICE MEDAL, NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON (3), GLOBAL WAR ON TERRORISM SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

20040301 :        NJP for violation of UCMJ:
         Article 108: Damage of military property.
         Article 134: Disorder ly conduct, drunkenness.
         Award: Forfeiture of ½ month pay for 2 months, restriction and extra duty for 30 days.

20040301:        Retention Warning: Advised of deficiency (Violation of the UCMJ, Article 108 (damage of military property); and 134 (disorderly conduct, drunkenness), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20040416:        Medical Record: Completion of level II alcohol abuse rehabilitation at USN Hospital, Yokusoka, Japan.

20041125:        Applicant arrested by Daytona Beach Police, Florida. Charged with a 2 ^ND degree misdemeanor for disorderly intoxication in public place causing a disturbance. Served one day confinement. [Extracted from CO’s message].

20051019:        NAVDRUGLAB, San Diego, C a reported Applicant’s urine sample, received 20051014, tested positive for Amphetamine/Methamphetamine.

20051117 :        NJP for violation of UCMJ:
         Article 112a (wr ongful use of controlled substance , 2 specifications) .
         Award: Forfeiture of $ 820 . 75 for 2 months, restriction and extra duty for 45 days, reduction to E- 3 .


Elements of Discharge: [INVOLUNTARY]

Date Notified :                                        20051026
Reason for Discharge                                -
                                                      MISCONDUCT – COMMISSION OF A SERIOUS OFFENCE
                                            MISCONDUT - PATTERN OF MISCONDUCT
Least Favorable Characterization Authorized :     OTHER THAN HONORABLE

Date Applicant R esponded to N otification:                 2005102 8
Rights E lected at N otification :
Consult with Counsel
Obtain Copies of Documents
Submit Statement(s) (date)
Administrative Board
GCMCA Review

Administrative Board Date :       20051201
Findings, by preponderance of the evidence:     By - .
         By - .
         By separation warranted.
Recommendation on Separation: By
Recommendation on Characterization:     By

Commanding Officer R ecommendation (date):        (20051222)
Separation Authority (date):      COMMANDER, U.S. NAVAL FORCES, JAPAN ( 20060112 )
         Reason for discharge directed :             -
                                                      MISCONDUCT – PATTERN OF MISCONDUCT
         Characterization directed:
Date Applicant Discharged:                         20060118

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:                               25

Related to Period of Service Under Review :
         From Service and/or Medical Record :                Other Records :

Related to Other Period (s) of Service:
         From Service and/or Medical Record:               Other Records:

Related to Post-Service Period:
         Employment:                                           Finances:
         Health/Medical Records:                            Substance Abuse:
         Family/Personal Status:                            Education:
        Community Service Efforts:                         References:
         Criminal Records:

Other:
         Additional Statements From Applicant :             From Representative:
        Other Documentation (Describe)

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 s of the UCMJ, Article s 108 and 112a .

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 | 2007_Navy | ND0700004

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