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NAVY | DRB | 2007_Navy | ND0700556
Original file (ND0700556.rtf) Auto-classification: Denied
ex-CECN, USN
ND07-00556
Current Discharge and Applicant’s Request
Application Received: 20070320   Characterization Received:
Narrative Reason: MISCONDUCT (DRUG ABUSE)                          Authority: MILPERSMAN 1910-146

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

Applicant’s Issues:       1. Administrative Board was unfair and biased.
                          

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Date: 20 071115                     Location: Washington D.C          R epresentation :


Discussion

 Issue 1 ( ): The Applicant contends that his administrative board was unfair and biased. T he Board presume s regularity in the conduct of g overnment affairs unless there is substantial credible evidence to rebut th e presumption . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence to support the contention that his administrative board was biased or unfair. E ven if the Applicant could document his claim of unfair / biased treatment this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The record documents both the applicant’s alcohol rehabilitation failure and three separate incidences of testing positive for cocaine. S eparation processing is mandatory for Sailors who abuse illegal drugs and for rehabilitation failures . 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 . The evidence of record did not show that the Applicant was either not responsible for h is conduct or that he should not be held accountable for h is actions .

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 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


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19991020 - 19991102              Active: 19991103 – 20050202 HON
Period of Service Under Review:
 Date of Enlistment: 20050203      Years Contracted : 2 ;               Date of Discharge: 20060404
Length of Service : 01 Yrs 0 2 Mths 01 D ys                            Lost Time : Days UA: undetermined
Education Level: 12       Age at Enlistment:       AFQT: 43          Highest Rank /Rate : CE3
Evaluation marks (# of occasions):       Performance: 4.0 (1)      Behavior: 4.0 (1)                  OTA: NFIR
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON (4), GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL WITH FMF INSIGNIA, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, IRAQ CAMPAIGN MEDAL, NAVY “E” RIBBON, PRESIDENTIAL UNIT CITATION, SEABEE COMBAT WARFARE SPECIALIST.


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

 20050203:        Applicant reenlisted for a term of two additional years while deployed to Camp Fal l ujah Iraq.
20050413:        Applicant detached from NMCB 4 enroute to NVBC.

20051128 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20051116, tested positive for c ocaine .

200 51214 :        NJP – V iol of UCMJ Art. 112a (wrongful use of a controlled substance ) .   
         Awarded – RIR ( E-3 ); Forfeiture of pay (for 2 months); Restr ( 60 days , suspended 6 months ).

20060120:        Applicant to unauthorized absence at 0730.

20060123:        Applicant from unauthorized absence.
20060131 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20060124, tested positive for c ocaine .

20060203:        Suspended punishment awarded at CO’s Mast on 20051214, vacated due to continued misconduct (UA and positive urinalysis) .

20060210:        Testimony of Mark Harney Ph.D . at Applicant’s Administrative board: Service member presented for treatment on 2060106 for treatment now with multiple significant problems, i.e. PTSD and ETOH dependency.

20060215 :         NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20060206, tested positive for c ocaine .


Discharge Process

 Date Notified:                                       20060109
Reason for Discharge:     -
        
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20060109
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Administrative Board Date :       20060210
Findings, by preponderance of the evidence:    
         BY - .
          BY - .
         BY SEPARATION WARRANTED.
 Recommendation on Separation:   BY
Recommendation on Characterization:    
         BY

Commanding Officer Recommendation (date):        ( 20060320 )
 Separation Authority (date):     Commander Navy Region Southwest ( 20060323 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20060404


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), 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 s 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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