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NAVY | DRB | 2007_Navy | ND0700504

Original file (ND0700504.rtf) Auto-classification: Denied

ex-SR, USN
ND07-00504

Current Discharge and Applicant’s Request

Application Received: 20070306 Characterization Received:

Narrative Reason: MISCONDUCT Authority: MILPERSMAN 3630620

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: As appropriate
Applicant’s Issues:       1. RE-code change
                           2. Applicant claims inadequate counsel in dealing with the positive, but flawed, urinalysis given.
3 . Post service - Equity

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .

Date: 20 071115 Location: Washington D.C          R epresentation : aMERICAN LEGION

Discussion

Issue(s) 1: 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 2 ( ): There is credible evidence in the record that the Applicant used illegal drugs. 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 claims inadequate counsel in dealing with the positive, but flawed, urinalysis given. It must be noted that the Applicant, not only elected counsel but, received an administrative board and was found guilty of all charges by a preponderance of the evidence. For the information of the applicant, an administrative board is administrative by nature and does not follow rules of evidence. However, t he evidence of record clearly shows the Applicant had a history of involvement with illegal drugs. In June of 1992, the Applicant was given a retention warning for failure to disclose pre-service civil involvement/drug abuse. In June of 1993 the Applicant was arrested by civil authorit y for possession of cocaine. The evidence of record clearly demonstrates the Applicant was responsible for his misconduct and should be held accountable for his actions.

Issue 3 ( ) : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, t here is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time , good conduct, or favorable endorsements in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding 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 his statement of post service accomplishments. The Applicant ’ s efforts need to be more encompassing. For example, t he Applicant could have produced evidence of a verifiable employment record, documentation of educational pursuits, documentation of community service, and certification of non-involvement with civil authorities. The Board found that the Applicant ’ s undocumented claims of good post service conduct did not mitigate the circumstances that resulted in the characterization of discharge.

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)      19911118 - 19920602              Active:

Period of Service Under Review:
Date of Enlistment: 19920603      Years Contracted : ; Extension:          Date of Discharge: 19940211
Length of Service : 01 Yrs 05 Mths 07 D ys          Lost Time : Days UA: 92 Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 65          Highest Rank /Rate : SN
Evaluation marks (# of occasions):       Performance: 3.6 ( 1 )       Behavior: 3.2 ( 1 )                   OTA: 3.4
Awards and Decorations ( per DD 214): NDSM, USCGSOSR

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

19920604:        Applicant received a retention warning for failing to disclose pre-service civil involvement/drug abuse.

19930507 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 19930428 , tested positive for ( cocaine ).

19930517:        NJP -- Viol UCMJ Art. 112a – Wrongful use of a controlled substance.
         Awarded - FOP ($456.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days), recommended for Administrative Separation.

19930613:        Drug Alcohol Abuse Report: Cocaine abuse as a result of a unit sweep urinalysis, dependent, recommended for separation not via VA hospital.

19930630:        Correction to recommendation for administrative separation ICO Applicant was sent to Chief of Naval Personnel based on the Applicants arrest by Virginia Beach Police for possession of Cocaine prior to the urinalysis conducted by the ship. The applicant was summoned by Virginia Beach circuit court and was tried during the month of June, 1993.

19930827:        Applicant to unauthorized absence

19930929:        Applicant declared a deserter.

19931127:        Applicant from unauthorized absence (92 days U/A)

19931208:        NJP -- Viol UCMJ Art. 86 – Absence without leave, unauthorized absence from TPU NORVA 0001, 19930827 to 1800, 19931127.
         Awarded - FOP ($407.40) for (2 months); RIR (E-1); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:                                       19930601
Reason for Discharge:     -

Least Favorable Characterization:

Date Applicant Responded to Notification:                  19930603
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review

Administrative Board Date :       19930731
Findings, by preponderance of the evidence:     BY - .
         BY SEPARATION WARRANTED.
Recommendation on Separation: BY
Recommendation on Characterization:     BY

Commanding Officer Recommendation (date):        ( 19930811 )
Separation Authority (date):     BUPERS WASHINGTON DC ( 19931104 )
Reason for discharge directed: -
Characterization directed:
Date Applicant Discharged:       19940211

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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective
05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 86 (unauthorized absence more than 30 days) and 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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NAVY | DRB | 2007_Navy | ND0700504

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