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NAVY | DRB | 2007_Navy | ND0700471
Original file (ND0700471.rtf) Auto-classification: Denied
ex-SN, USN
ND07-00471
+
Current Discharge and Applicant’s Request
Application Received: 20070227   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MILPERSMAN 3630620

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1.
                           2.

Applicant’s Issues:      1. In service –Equity (Applicant service 2 previous honorable tours)
                           2 . Personal problems – Equity
                            3. Post Traumatic Stress Disorder -PTSD

Decision

 Date: 20080220            Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE)

Discussion

 Issue 1 ( ). The Applicant contends that his discharge was inequitable as his thirteen plus years of honorable service were not considered when he was discharged. The NDRB advises the Applicant that, despite a service member ’ s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by the finding at a nonjudicial punishment (NJP) proceeding on 19940207 by a violation of UCMJ Article 112a, Wrongful use of a controlled substance. Although discharge for violation of the UCMJ Article 112a may seem harsh, that violation was for abuse of a controlled substance. Individuals are indoctrinated from the day of recruitment and have had the policy reinforced through annual Navy-wide training sessions, throughout their enlistment on the U.S Navy ’ s zero tolerance policy for substance abuse and that a violation of this policy will result in mandatory processing for administrative separation which usually results in an unfavorable characterization of discharge. This policy is well known throughout both the Department of Defense and the civilian sector as well. Accordingly, this misconduct substantiates the reason for his separation as well as his characterization of service under other than honorable conditions. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged.

Issue 2 ( ). The Applicant contends that his problems in the Navy can be attributed to his "stress from the war and family issues." While he may feel that personal issues w ere the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. 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.

Issue 3 ( ). The Applicant contends that his problems were attributed to Post Traumatic Stress Disorder (PTSD) . 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 his issue. The NDRB did note the Applicant was diagnosed with PTSD in September of 2006. It was also noted that the diagnoses was determined 12 years after the Applicant was discharged and does not appear to be linked with his misconduct. While t he Applicant may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. 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.



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)      19801112 - 19810204              Active:          19810205 - 19850127
Active:          198 50128 - 19 910322 HON
Period of Service Under Review:
 Date of Enlistment: 19910323      Years Contracted : ; Extension:   Date of Discharge: 19940622
Length of Service : 03 Yrs 03 Mths 00 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 17          Highest Rank /Rate : EN2
Evaluation marks (# of occasions):       Performance: 4.0 ( 4 )       Behavior: 4.0 ( 4 )                   OTA: 4.0
Awards and Decorations ( per DD 214): GCA (3 RD ), NUC, CAR, NDSM, SASM, KSM, SSDR (2 ND )

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

19910323:        Reenlisted this date for a term of 4 years.
19940207 :         NAVDRUGLAB, Norfolk , V A, reported Applicant’s urine sample, received 19940201 , tested positive for ( cocaine ).

19940303:        NJP -- Viol UCMJ Art. 112a – Wrongfully used a controlled substance (cocaine) on or about 19940125.
         Awarded - FOP ($616.00) for (2 months); RIR (E-4); Restr for (60 days) suspended for 6 months

19940311 :         NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 19940308, tested positive for (cocaine).

19940314:        Restriction for 60 days (suspended for 6 months) Awarded at CO’s NJP held on 19940303 was vacated due to continued misconduct.

19940325 :         NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 19940322, tested positive for (cocaine).
19940526:        NJP -- Viol UCMJ Art. 86 – Absent without authority 0800 19940518 until 0630, 19940519.
         Awarded - FOP ($200.00) for (1 month); RIR (E-4); Restr for (30 days) suspended for 3 months.
19940614:        Restriction awarded and suspended at NJP on 19940526 vacated.

19940629:        DAAR: Indicates cocaine abuse as a result of a unit sweep urinalysis, found not dependent, recommended for separation not via VA hospital .

Discharge Process

 Date Notified:                                       19940418
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19940419
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Administrative Board Date :       19940505
Findings, by preponderance of the evidence:     BY - .
          BY SEPARATION WARRANTED.
 Recommendation on Separation:   BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 19940513 )
Separation Authority (date):     BUPERS WASHINGTON DC ( 19940615 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19940622

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) Department of Veterans Affairs Rating Decision


Pertinent Regulation/Law
A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 January 2004 – 09 May 200 5 ,
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 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 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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