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NAVY | DRB | 2007_Navy | ND0700983
Original file (ND0700983.rtf) Auto-classification: Denied
ex-SK3, USN
ND07-00983

Current Discharge and Applicant’s Request
Application Received: 20070711   Characterization Received:
Narrative Reason: MISCONDUCT (DRUG ABUSE)        Authority: MILPERSMAN 1910-146

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

Applicant’s Issues:       1. Inequitable because based on 8 months of 14+ years of active service.
                           2 . Deny s ever knowing ly using cocaine.
                            3 . Should not have been discharged in absentia, was at Navy Hospital Pensacola for separations                              physical on 22 July, 2005. Not medically qualified for discharge (hernia).
                           4 . Post – Registered voter, good citizen, gainfully employed, reference letters submitted.


Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Date: 20 080110             Location: Washington D.C         R epresentation :


Discussion

 Issue 1 ( ): The Applicant contends that his characterization of service is inequitable because fails to take into consideration the Applicant’s previous 14 years of honorable service . In r eviewing discharges the NDRB’ s authority is limited to the enlistment contract wherein the disputed discharge occurred. C ertain 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 is the basis for the discharge. S eparation processing is mandatory for Sailors who abuse illegal drugs. 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 com pliance with MILPERSMAN 3630620 . An under 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. Discharges resulting from drug abuse normally result in a under other than honorable conditions characterization of service. N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgr ade.

Issue 2 ( ): The Applicant d enies ever knowingly using cocaine. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support h is claim . There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that his positive drug test was not the result of his knowingly and willing using illegal drugs. The record clearly reflects his willful and continued misconduct which demonstrated he was unfit for further service.

Issue 3 ( ): The Applicant claims that he should not have been discharged in absentia on 15 July 2005 because he was at the Navy Hospital Pensacola for his separation physical on 22 July, 2005 when a hernia was discovered making him unfit for discharge. 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

Issue 4 ( ): The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, 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 the civilian life subsequent to leaving the servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding 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 stated in his letter to the board that he is a registered voter, a good citizen and is employed along with submitting three character reference letters in support of his argument for an upgrade based on post-service conduct . The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities and evidence of a drug fee lifestyle . The Board determined that the Applicant’s unsubstantiated statements did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service .


Administrative Corrections to the Applicant’s DD 214

 The NDRB did note an administrative error on the original DD Form 214 :

         “ Continuous HONORABLE ACTIVE DUTY from 91 MAR 01 until 02 APR 30 ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.


Summary of Service

Prior Service:
 Inactive: US N R 19841105 - 19910228               Active: 19910301 – 20020430 HON
Period of Service Under Review:
 Date of Enlistment: 20020430               Years Contracted : 4 ;              Date of Discharge: 20050715
Length of Service : 03 Yrs 02 Mths 16 D ys                                     Lost Time :
Education Level: Some College     Age at Enlistment: 40     AFQT: 47            Highest Rank /Rate : SK1
Evaluation marks (# of occasions):       Performance: 4.3 ( 4 )      Behavior: 3.5 ( 4 )                 OTA: 3.79 (4)
Awards and Decorations ( per DD 214): Navy and Marine Corps Achievement Medal (6), NDSM (2), Naval Reserve Meritorious Service Medal (2), Navy “E” Medal (2), Naval Reserve Sea Service Deployment Ribbon, Navy Pistol Marksman, NGCM (3), Armed Forces Reserve Medal, ESWS, SSDR, Coast Guard Special Operations Service Ribbon, GWOTSM


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

 20020430:        Applicant reenlists for four years.

20020802:        Applicant awarded Navy and Marine Corps Achievement Medal (gold star in lieu of fifth award).

20021111:        Applicant reports for duty aboard USS STEPHEN W GROVES (FFG 29).

 20040229:        Applicant awarded Navy and Marine Corps Achievement Medal (silver star in lieu of sixth award).
20041228 :        NJP – Viol ation of UCMJ Art icle 112a (wrongful use of a controlled substance) .
          Awarded - FOP ($ 1183/month for 1 month); RIR ( E-5 ).

20050422 :        NJP – Viol ation of UCMJ Art icle 112a (wrongful use of a controlled substance) .
         Awarded - FOP ($ 1174/month for 2 months); RIR ( E-4 ); Restr ( 45 days); Extra duties ( 45 days).

20050422:        Commanding Officer, USS STEPHEN W . GROVES (FFG 29) recommended to Commander, Navy Personnel Commend the Applicant’s administrative discharge. Comments: “ SK3 R_’s (Applicant) actions have had a decidedly negative impact on the USS STEPHEN W . GROVES (FFG 29). His continued use of a controlled substance goes against all Navy standards and can not be tolerated in the Navy or at this command. SK3 R_ is strongly recommended for an other than honorable discharge.”
20050608:        Commander, Destroyer Squadron Fourteen endorsed the commanding officers recommendation of the Applicant’s administrative separation. Comments: “I concur with the Commanding Officer’s recommendation the SK3 R_ (Applicant) be separated from the naval service with an Other Than Honorable discharge...SK3 R_’s continual and willful use of a controlled substance, even while awaiting and administrative board, is simply inexcusable and cannot be tolerated. After SK3R_’s second positive urinalysis on 8 April 2005, he elected to waive his right to an administrative board. SK3 R_ has demonstrated a total disregard for the Navy’s policy on drug abuse and expeditious and adverse separation is warranted. ”

20050624:        Commander, Naval Surface Force, U. S. Atlantic Fleet endorsed the comm anding officers recommendation of the Applicant’s administrative separation. Comments: “I also find the SK3’s (Applicant’s), 22 April 2005 waiver of his right to an administrative board after his second positive urinalysis for cocaine superseded his 28 December 2004 election of an administrative board executed after his first positive urinalysis for cocaine. ”


Discharge Process

 Date Notified:                                       20050422
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20050422
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       

Commanding Officer Recommendation (date):        ( 20050422 )
 Separation Authority (date):     COMNAVPERSCOM ( 20050714 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20050715


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 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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