Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700899
Original file (ND0700899.rtf) Auto-classification: Denied
ex-HT2, USN
ND07-00899
Current Discharge and Applicant’s Request
Application Received: 20070621   Characterization Received:
Narrative Reason: MISCONDUCT (DRUG ABUSE)        Authority: MILPERSMAN 1910-146

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Did not commit misconduct , a dmission of drug use was involuntary
                            2 . Administrative Discharge Board and Separation Authority did not consider all relevant evidence

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Date: 20 080103             Location: Washington D.C         R epresentation :

Discussion

 Issue 1 ( ). The government is entitled to a presumption of regularity in the conduct of its affairs. The written record of the Applicant’s admission of drug use appears proper on its face. Essentially, the Applicant asks this Board to believe his version of events rather than believe the command investigator’s version of events. In support, t he Applicant submitted a document that purports to be from the former member who originally claimed to have observed the Applicant use cocaine. In this most recent document, the purported former member indicates that his original accusation against the Applicant was false. The Applicant’s reiteration of his innocence, by itself, is not sufficient to overcome the presumption that his admission was voluntary as it appears. Further, the Board determined that, even if accepted the authenticity of the submitted document, it could not determine its validity in light of all the circumstances. Therefore, the Board found the discharge to be proper.

Issue 2 ( ). The record demonstrates that the Applicant fully and vigorously exercised his rights throughout the entire discharge process. The record also supports the conclusion that all persons charged with the responsibility of ascertaining the facts and determining an appropriate disposition did so in a comprehensive, diligent manner. The Applicant’s basis for this issue appears simply to be the fact that he was not believed by the members of his administrative discharge board and the Separation Authority. This, by itself, does not constitute evidence of an impropriety in the 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)      19990708 - 19990823              Active:          19990824 - 20021121
                                                                                          20021122 - 2006 1115
Period of Service Under Review:
 Date of Enlistment: 20061116               Years Contracted : ; Extension:            Date of Discharge: 20070517
Length of Service : 00 Yrs 05 Mths 02 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:                  Age at Enlistment:                AFQT: 38          Highest Rank /Rate : HT2
Evaluation marks (# of occasions):       Performance: 3.8 ( 4 )       Behavior: 2.8 ( 4 )                  OTA: 3.50
Awards and Decorations ( per DD 214): NMCAM, NUC, NDSM, GCM(2), GWOTEM, SSDR(2) (Applicant submitted documentary evidence of award of GWOTSM, OSR, CERTCOM(2), LoC and LoA)


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

 20071204:        Sailor with positive urinalysis for cocaine provided statement claiming to have observed Applicant use cocaine.

 20071205 :        Applicant provided statement to command investigator admitting to cocaine use on 6 occasion s .

20070103:        Report and Disposition of Offense (NAVPERS 1626/7) forwarded to Commanding Officer, Naval Air Station Atlanta, alleging Applicant used cocaine about April 2006. Applicant demanded trial by court-martial, and provided statement claiming that he was innocent of allegation .

Discharge Process

 Date Notified:                                       20070123
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20070123
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       

Administrative Board Date :       20070322
Findings, by preponderance of the evidence:     BY 3-0 VOTE - .
          BY 3-0 VOTE SEPARATION WARRANTED.
 Recommendation on Separation:   BY 3-0 VOTE
Recommendation on Characterization:     BY 3-0 VOTE

Commanding Officer Recommendation (date):        ( 20070423 )
Separation Authority (date):     COMMANDER, NAVY REGION SOUTHEAST ( 20070507 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20070517

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) Extract from OPNAVINST 5350.4C and MILPERSMAN; Ltr s from Member of Congress , Ltr from Navy Personnel Command to Member of Congress

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 .

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

Similar Decisions

  • NAVY | DRB | 2003_Navy | ND03-00196

    Original file (ND03-00196.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member 1 and 4) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 19791031 - 19800313 COG Active: USN 19800314 - 19840311 HON USN 19840312 – 19891130 HON Period of Service Under Review :Date of Enlistment: 19891201 Date of Discharge: 19950511 Length of Service (years,...

  • USMC | DRB | 2010_Marine | MD1000732

    Original file (MD1000732.rtf) Auto-classification: Denied

    The Applicant could have provided documentation as stated in the Post-Service Conduct paragraph in the Addendum with the understanding that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded...

  • USMC | DRB | 2014_Marine | MD1400428

    Original file (MD1400428.rtf) Auto-classification: Denied

    His confessed continued use of marijuana, urinalysis confirmation of cocaine usage, and alcohol abuse as documented in his medical treatment records and an administrative counseling warning were all conscious decisions to violate the tenets of honorable and faithful service.After an exhaustive review, the NDRB determined PTSD, TBI, and the Applicant’s personal problems did not mitigate his misconduct, and his discharge was warranted, proper, and equitable. Relief denied.Summary: After a...

  • USMC | DRB | 2009_Marine | MD0901949

    Original file (MD0901949.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ...

  • USMC | DRB | 2015_Marine | MD1401655

    Original file (MD1401655.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2008_Navy | ND0800593

    Original file (ND0800593.rtf) Auto-classification: Denied

    The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. 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 Pertinent Regulation/Law A. SECNAVINST 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards...

  • USMC | DRB | 2011_Marine | MD1100465

    Original file (MD1100465.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: Pertinent Regulation/Law A. Paragraph 1105, DISCHARGE...

  • USMC | DRB | 2010_Marine | MD1002221

    Original file (MD1002221.rtf) Auto-classification: Denied

    Per Marine Corps regulations, consultation with civilian counsel shall not unduly delay administrative separation board proceedings. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2004_Navy | ND04-00104

    Original file (ND04-00104.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. This report was caused by NJP action against SNM for violation of UCMJ Article 112A: Cocaine on 881026.881103: Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).881205: CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to...

  • NAVY | DRB | 2004_Navy | ND04-00454

    Original file (ND04-00454.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Mandatory processing for separation is required for sailors who abuse illegal drugs. As of this time, the Applicant has not provided any documentation for the Board to consider.