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NAVY | DRB | 2007_Navy | ND0700415
Original file (ND0700415.rtf) Auto-classification: Denied
ex-CSSN, USN
ND07-00415
Current Discharge and Applicant’s Request
Application Received: 20070216            Characterization Received: OTHER THAN HONORABLE
Narrative Reason: MISCONDUCT              Authority: MILPERSMAN 1910-146

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change:

Applicant’s Issues:       1. Used drugs as a result of depression.
                           2. 15 years of honorable service.
                           3. Post Service – completed six month volunteer rehabilitation course.


Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 071025                                       Location: Washington D.C.


Discussion

 Issue 1 (Equity): The Applicant contends that his discharge was inequitable because his depression was the cause of his drug use. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h is claim . There is no evidence in the record, nor has the Applicant produ ced any evidence, to support his contention of depression. However, even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s misconduct. The Applicant’s service was marred by his no njudicial punishment for violati ng UCMJ Article 112a (wrongful use of a controlled substance ). 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. 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. Navy and falls far short of that required for an upgr ade.

Issue 2 ( ): The Applicant states his discharge was too harsh and his previous 15 years of good service were not taken into consideration. Despite a servicem ember’s prior record of service certain serious offenses though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant admitted, and the record documents, his in-service use of illegal drugs which is the basis for the discharge. The separation code (entered on block 26 of the DD-214) indicates that the Applicant waived h is right to an administrative board and the discharge authority directed the Applicant’s discharge after ensuring compliance with MILPERSMAN 1910-146. N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. An “other than honorable conditions” characterization of service 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

Issue 3 (Equity): The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, 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 the civilian life subsequent to leaving the servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding post-service conduct , 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, is considered. The Applicant provided a certificate of completion from The Salvation Army’s Adult Rehabilitation course as doc umentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service .

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption. 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


Administrative Corrections to the Applicant’s DD 214

 The NDR B did note administrative errors on the original DD Form 214 :

         “ CONTINUOUS ACTIVE SERVICE 19890727 TO 20040801 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service:
 Inactive: US N R   19890720 - 19890726              Active:          19890727 - 19930430
                                                               Active:          19930501 - 19960418                                                                              Active:          19960419 - 199902 11
                                                               Active:          19990212 - 20040731


Period of Service Under Review:
 Date of Enlistment: 2004080 1               Years Contracted :        Date of Discharge: 20050311
Length of Service : 00 Yrs 07 Mths 09 D ys                            Lost Time : Days UA: 30 Days
Education Level:         Age at Enlistment: 36     AFQT: 33          Highest Rank /Rate : MS2
Evaluation marks (# of occasions):       Performance: 2.0                   Behavior: 2.0             OTA: 2.33 (2)
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (5), BATTLE "E" RIBBON, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NAVY UNIT COMMENDATION

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

 20041218:        NJP (no further information).

 20050110 :        NJP - Viol UCMJ Art. 112a (w rongful use of a controlled substance ) .
         Awarded - FOP ( $ 820.00 for 2 months); RIR ( E-3 ); Restr ( 60 days).

Discharge Process

 Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):       
Separation Authority (date):     NOT FOUND IN RECORD
Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       20050311


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)      


Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, Article 1910-146 (formerly 3630620), 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 .


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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