ex-AR, USN
                                 ND07-00708

                  Current Discharge and Applicant’s Request

Application Received:  20070426   Characterization Received:
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-146

Applicant’s Request:   Characterization change to:
                 Narrative Reason change to:
Applicant’s Issues:    1. Employment Opportunities
                 2. Learned from his past.

                                  Decision

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

Date:  20071205       Location:  Washington D.C     Representation:

                                 Discussion

Issue 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: ().  The Applicant contends that he made bad decision and has
learned from his past.  There is no law or regulation, which provides that
an unfavorable discharge, may be upgraded based solely on the passage of
time.  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 no documentation of post-
service accomplishments.  The Applicant could have produced evidence of
continuing educational pursuits, a verifiable employment record,
documentation of community service, certification of non-involvement with
civil authorities and evidence of a drug free lifestyle.  Absent any
documentation provided by the Applicant for the Board to consider, the
Board determined that the Applicant’s service record did not mitigate the
misconduct that resulted in the characterization of discharge.   An upgrade
would be inappropriate.

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: USNR (DEP)   20010430 - 20020422         Active:
Period of Service Under Review:
Date of Enlistment: 20020423 Years Contracted:  ; Extension:        Date of
Discharge:  20030220
Length of Service:  00  Yrs  09  Mths  28  Dys     Lost Time:  Days UA:
Days Confined:
Education Level:       Age at Enlistment:    AFQT:  55   Highest Rank/Rate:
 AR
Evaluation marks (# of occasions):      Performance:  N/A     Behavior:
N/A    OTA:  N/A
Awards and Decorations (per DD 214):  NDSM


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

20021121:   NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample,
           received 20021115, tested positive for THC.

20021213:   NJP -- Viol UCMJ Art. 86 (2 specs) - Absent from unit (150
           days/surrendered), (2) Absent from unit (8 ½ hours), Art. 112a -
           Wrongfully use marijuana.
      Awarded - FOP ($552.00) for (2 months); Restr for (60 days).

                              Discharge Process

Date Notified:                          20030113
Reason for Discharge:   -
       -
Least Favorable Characterization:

Date Applicant Responded to Notification:          20030113
Rights Elected at Notification:
      Consult with Counsel
      Obtain Copies of Documents
      Submit Statement(s) (date)
      Administrative Board
      GCMCA review

Commanding Officer Recommendation (date):     (20030122)
Separation Authority (date): COMMANDER, NAVY REGION SOUTHWEST (20030127)
              Reason for discharge directed:  -
              Characterization directed:
Date Applicant Discharged:   20030220

      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), re-issued
October 2002, effective 22 August 2002 until
25 January 2004, 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 86
[Unauthorized Absence 9more than 30 days)] and Article 134 (Wrongful use of
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, 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