Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700445
Original file (ND0700445.rtf) Auto-classification: Denied
ex-MM3, USN
ND07-00445

Current Discharge and Applicant’s Request
Application Received: 20070221   Characterization Received:
Narrative Reason: MISCONDUCT DRUG ABUSE          Authority: MILPERSMAN 1910-146

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

Applicant’s Issues:       1. Reenlistment.
                           2. Never officially notified of urinalysis results (impropriety).


Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Date: 20 080103             Location: Washington D.C         R epresentation :


Discussion

 : 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 contends that his discharge processing was improper. The record contains full documentation of the Applicant’s discharge processing. The Applicant was properly notified of his intended administrative discharge for drug abuse. On this notification the Applicant elected to consult with counsel and obtain copies of the documents used to support the discharge. The Applicant was given the right to make a statement and to request and appear before an Administrative Board both of which he declined . 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 d isc harge and up to 5 year s of imprisonment if adjudicated by a court martial. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. 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 discern no impropriety or inequity and therefore considers the discharge proper and equitable.

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al 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 s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that


Administrative Corrections to the Applicant’s DD 214

 The NDRB did note an administrative error on the original DD Form 214 :

         “ Continous Honorable active service from 94 SEP 29 through 98   JAN 03 ”
        
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 (DEP)      19940927 - 19940928              Active: 19940929 - 19980103
Period of Service Under Review:
 Date of Enlistment: 19980104      Years Contracted : ; Extension: 40 MONTHS          Date of Discharge: 20060426
Length of Service : 8 Yrs 03 Mths 22 D ys                                       Lost Time :
Education Level:         Age at Enlistment:       AFQT: 49          Highest Rank /Rate : MM2
Evaluation marks (# of occasions):       Performance: 4.2 ( 5 )      Behavior: 3.8 ( 5 )                 OTA: 3.77 (5)
Awards and Decorations ( per DD 214): NDSM, GWOTSM, NGCM(3), GWOTEM, OSR(2), NUC, SSDR(2), AFEM, ICM, ESWS, EAWS


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

19980104:        Reenlisted this date for a term of 5 years.

20030819:        Applicant reported for duty aboard NSF Bahrain.

20060305 :         NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample tested positive for (D-Amphetamine).
20060403:        Applicant’s voluntary statement t o J_ S. N_, NCIS representative discussed receiving 6 white pills from Rafed which the Applicant admitted to ingesting under the assumption that they were ephedrine.

20060405 :        NJP – Viol ation of UCMJ Art icle 112a (wrongful use of controlled substance ) .
         Awarded - FOP ( $ 1009.00 ) for ( 1 month); RIR ( E-4 ); Restr for ( 45 days); Extra duties ( 45 days) .

Discharge Process

 Date Notified:                                       20060406
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20060410
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Commanding Officer Recommendation (date):        Not found in record
Separation Authority (date):     COMMANDER, NAVY REGION SOUTHWEST ASIA ( 20060410 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20060426


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) Release and Consent Letter to Congressman D_, Letter from T.E. D_, Head, Congressional Affairs, Data of Evidence On The Safety And Effectiveness of Ephedra


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 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

Similar Decisions

  • USMC | DRB | 2009_Marine | MD0901273

    Original file (MD0901273.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. discharge. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.

  • NAVY | DRB | 2006_Navy | ND0600688

    Original file (ND0600688.rtf) Auto-classification: Denied

    ND06-00688 Applicant’s Request The application for discharge review was received on 20060410. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.

  • NAVY | DRB | 2008_Navy | ND0800175

    Original file (ND0800175.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Applicant’s Issues 1. Types of Documents SubmittedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other...

  • NAVY | DRB | 2009_Navy | ND0900263

    Original file (ND0900263.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.Besides the Applicantsstatement on the DD Form 293, he provided references and correspondence any additional as evidence on his behalf. The...

  • USMC | DRB | 2005_Marine | MD0500818

    Original file (MD0500818.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “RE Code.” The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. Not appealed.010905: Counseling: Advised of deficiencies in performance and conduct (NJP held on 010905 for violation(s) of Article 92 of the UCMJ), necessary corrective actions...

  • NAVY | DRB | 2011_Navy | ND1101803

    Original file (ND1101803.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. The Applicant did not have a...

  • NAVY | DRB | 2006_Navy | ND0600665

    Original file (ND0600665.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. An under other than honorable conditions 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 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...

  • USMC | DRB | 2007_Marine | MD0700963

    Original file (MD0700963.rtf) Auto-classification: Denied

    The Naval Discharge Review Board (NDRB) found in the Applicant’s record of his Administrative Discharge Board that the Applicant claimed that he was given the pill by his father. Recommendation on Separation: BY Recommendation on Characterization: BY Commanding Officer Recommendation (date): (20060427) SJA review (date): Separation Authority (date): CG, 2 nd MARDIV (20060515) Basis for discharge directed: DUE TO: Characterization directed: Date Applicant Discharged: 20060525 Types of...

  • NAVY | DRB | 2005_Navy | ND0501435

    Original file (ND0501435.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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

  • USMC | DRB | 2015_Marine | MD1500847

    Original file (MD1500847.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has...