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NAVY | DRB | 2007_Navy | ND0700084
Original file (ND0700084.rtf) Auto-classification: Denied
ex-SA, USN
ND07-00084
Current Discharge and Applicant’s Request
Application Received: 20061025   Characterization Received:
Narrative Reason: MISCONDUCT (DRUG ABUSE)                                   Authority: MILPERSMAN 1910-146

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Change RE Code
                           2. Enhance employment opportunities
                           3. Innocent ingestion (spiked drink)
                           4. Isolated incident, retention not considered
                           5. “was declined” board to review type of discharge

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Date: 2 0 071 120            Location: Washington D.C.        Representative : NONE

Discussion

Issue(s) 1 - 2 : 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 3 ( ). The government is entitled to a presumption of regularity in the conduct of its affairs. The Applicant’s service record did not contain evidence of a positive urinalysis, a substantiated finding of wrongful use, or the discharge package, other than that which can be presumed from the Applicant’s DD 214. The Board determined that the presumption of regularity regarding the positive urinalysis and a substantiated finding of wrongful use was supported by the Applicant’s statement acknowledging the urinalysis result and a Captain’s Mast ’s result. The Board decided that the Applicant’s claim of innocent ingestion was not credible enough to overcome the presumption of regularity that his discharge was proper.

Issue 4 ( ). Despite a servicemember’s prior 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. The Applicant’s statements do not overcome the presumption of regularity attaching to the decision-making process of those in the chain of command who assessed the validity of the Applicant’s alleged drug use .

Issue 5 ( ). The Board was not sure what the Applicant meant by the phrase “was declined” a board, but construed the issue as an assertion that he was not afforded the opportunity to challenge his separation at an administrative discharge board to which he would have been entitled. The Board found that the separation code on the Applicant’s DD 214 indicates that he waived his board. The Applicant’s statement, as construed, does not overcome the presumption of regularity that the Applicant was properly notified of, and voluntarily exercised, his rights.

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20020531 - 20021014              Active:         
Period of Service Under Review:
 Date of Enlistment: 20021015               Years Contracted : ; Extension:          Date of Discharge: 20060712
Length of Service : 03 Yrs 08 Mths 28 D ys          Lost Time : Days UA: Days Confine d :
Education Level: NOT FOUND       Age at Enlistment:       AFQT: NOT FOUND  Highest Rank /Rate : SN
Evaluation marks (# of occasions):       Performance: 2. 7 ( 3 )      Behavior: 2. 7 ( 3 )        OTA: 2.6 7
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3), OVERSEAS SERVICE RIBBON (3), GLOBAL WAR ON TERRORISM SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, NAVY UNIT COMMENDATION, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GOOD CONDUCT MEDAL, SHARPSHOOTER PISTOL SHOT RIBBON, FLAG LETTER OF COMMENDATION

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

N one found in record .
Discharge Process

 Date Notified:                                       NOT FOUND IN RECORD
Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
Separation Authority (date):     NOT FOUND IN RECORD
Date Applicant Discharged:       20060712

Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe) Ltr from U.S. Senator

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 .


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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . 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.
Employmen t / 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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