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NAVY | DRB | 2007_Navy | ND0700591doc

Original file (ND0700591doc.rtf) Auto-classification: Denied

ex-SM3, USN
ND07-00591

Current Discharge and Applicant’s Request

Application Received: 20070329 Characterization Received: OTHER THAN HONORABLE
Narrative Reason: MISCONDUCT Authority: MILPERSMAN 1610-146

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

Applicant’s Issues:      1. My character of service was honorable
                           2. There was no misconduct at the time of discharge.
                           3. Discharged two years after incident.
                           4. Passed 4 subsequent urinalysis’s.
                           5. Rushed off ship with no review board information.
                           6. Post service – Fire Fighter certificate, emergency medical technician, and volunteer at community fire department.

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

Date: 20 071120    Location: Washington D.C        R epresentation :

Discussion

Issue 1,2,3,4,5,6 ( ): After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety in the discharge process and an inequity in the Applicant’s characterization of service. The MILPERSMAN 1910-146 states: “I f the commanding officer determines the drug use was not wrongful, then the member shall not be identified as a drug abuser and the positive urinalysis is not a drug abuse incident. When this determination is made the command shall notify Navy Personnel Command and the command's immediate commander o f the circumstances that warranted such a determination. ” The board found no evidence that this procedure was followed, thus leaving the Applicant vulnerable to the discharge process at a later date. Furthermore, the Applicant was issued a retention warning following his non-judicial punishment for drug abuse. There was no indication in the record of this warning ever being violated. The Board normally presumes regularity in the conduct of governmental affairs. However, in this case (though the record was incomplete) t he Board members determined that the retention warning given following the Applicant’s nonjudicial punishment for drug abuse was ever never violated. The Board found the discharge process improper. B ased upon the improper processing the narrative reason for discharge shall change to “Secretarial Authority”. Relief granted.

With regards to the characterization of service: The MILPERSMAN defines “general (under honorable conditions)” service as: “ When the quality of the member’s service has been honest and faithful; however, significant negative aspects of the member’s conduct or performance of duty outweighed positive aspects of the member’s service.” The only misconduct found in the record was the Applicant’s uncontested violation of UCMJ 112a. Th e board determined that relief wa s warranted based on an inequity in the Applicant’s characterization of service . The characterization of service shall change to “ GENERAL (UNDER HONORABLE CONDITIONS) ”. Relief granted.

The NDRB discerned an impropriety in the discharge process and an inequity in the characterization of service assigned . The Board voted 4 - 1 that the character of the discharge shall change to General (under honorable conditions) and that the narrative reason shall change to Secretarial Authority

Summary of Service

Prior Service:
Inactive: USNR (DEP)     19980619 - 19990617              Active:
Period of Service Under Review:
Date of Enlistment: 19990618               Years Contracted : ;                Date of Discharge: 20020719
Length of Service: 03 Yrs 01 Mths 29 D ys                                    Lost Time:
Education Level:         Age at Enlistment: 19     AFQT: 33          Highest Rank/Rate: SM3
Evaluation marks (# of occasions):       Performance: 3.0 ( 3 )      Behavior: 2.6 ( 3 )                  OTA: 3.11 (3)
Awards and Decorations (per DD 214): SSDR, NDSM

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

20001219:        NJP - Viol UCMJ Art. 112a (w rongful use of a controlled substance ) .
         Awarded – RIR ( suspended for 6 months ) ; Restr (45 days); Extra duties (45 days).

20001219:        Retention Warning for wrongful use of a controlled substance.

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                       Discharge code indicates waived

Commanding Officer Recommendation (date):
Separation Authority (date):     NOT FOUND IN RECORD
Reason for discharge directed:
Characterization directed:
Date Applicant Discharged:       20020719

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 33, effective 16 Jul 2001 until 21 Aug 2002, 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, provided 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 granted 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.

Employment/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 | ND0700591doc

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