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NAVY | DRB | 2007_Navy | ND0700594
Original file (ND0700594.rtf) Auto-classification: Denied
ex-SR, USN
ND07-00594
Current Discharge and Applicant’s Request
Application Received: 20070404   Characterization Received:
Narrative Reason: MISCONDUCT - Drug Abuse                          Authority: MILPERSMAN 3610240

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

Applicant’s Issues:       1. One isolated incident.
                           2. U nfair because a Chief failed a urinalysis for Marijuana and was offered drug rehabilitation.


Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 071129             Location: Washington D.C         R epresentation :


Discussion

 Issue 1 ( ): D espite a servicem ember’s prior record of service certain serious offenses, though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The record documents, the Applicant’s in-service use of illegal drugs which forms the basis for the discharge. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carries a maximum penalty of a dishonorable disc harge and up to 5 year s of imprisonment if adjudicated by a court martial. The Applicant waived h is right to an administrative board and the discharge authority directed the Applicant’s discharge after ensuring compliance with MILPERSMAN, Article 3630620 . 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. An “other than honorable conditions” characterization of service 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.

Issue 2 ( ): The Applicant states that h is discharge was inequitable because another service member was punished less harshly for similar misconduct. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. However, even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The record and the A pplicant’s own statement’s support the conclusion that the Applicant violated UCMJ Article 112a (wrongful use of a controlled substance ) , that separation from the n aval service was appropriate, and that a under other than honor conditions characterization of service was warranted.

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



Summary of Service

Prior Service:
 Inactive: 19940411 – 19940605 COG                                   Active:
Period of Service Under Review:
 Date of Enlistment: 19940606               Years Contracted : 2                Date of Discharge: 19951117
Length of Service : Active: 01 Yrs 05 Mths 12 D ys                            Lost Time :
Education Level:         Age at Enlistment:       AFQT: 64          Highest Rank /Rate : SA
Evaluation marks (# of occasions):       Performance: 3.6 (1)      Behavior: 3.6 (1)                 OTA: 3.60 (1)
Awards and Decorations ( per DD 214): NDSM


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

 19951025 :        NJP - Viol UCMJ Art. 112a (w rongful use of a controlled substance , THC) .
         Awarded - FOP ( $ 427.00 for 2 months); RIR ( E-1 ); Restr ( 45 days); Extra duties ( 45 days) .

Discharge Process

 Date Notified:                                       19951026
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19951026
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Commanding Officer Recommendation (date):        ( 19951026 )
Separation Authority (date):     BUPERS ( 19951107 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19951117


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 24, effective 20 May 99 until 26 March 2000, 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

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