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NAVY | DRB | 2007_Navy | ND0701009
Original file (ND0701009.rtf) Auto-classification: Denied
ex-DCFN, USN
ND07-01009
Current Discharge and Applicant’s Request
Application Received: 20070717   Characterization Received:
Narrative Reason: MISCONDUCT     Authority: MILPERSMAN 1910-146

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Misconduct was isolated incident caused by medical injury

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 claims that his illegal drug use was a single incident, and the result of his depression brought about by the uncertainty of his future in the Navy caused by a slow healing hand injury that may have rendered him physically unqualified for service. First, t he NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline. Second, the Board noted that , contrary to his claim, the Applicant’s medical record clearly documents a long, repeated history of serious illegal drug use . Mandatory processing for separation is required for Sailors who abuse illegal drugs. Separation under these conditions usually results in characterization of service as under other than honorable conditions. Further, the Board noted that the Applicant’s medically documented illegal drug use appeared to demonstrate that the Applicant committed a fraudulent enlistment into the naval service, itself a serious offense in violation of the Uniform Code of Military Justice. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for any of his medical problems. Nor does the evidence of record demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.

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

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214 :

         “ MISCONDUCT (DRUG ABUSE) ”
        
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 (DEP)      20030522 - 20030622              Active:         
Period of Service Under Review:
 Date of Enlistment: 20030623                        Years Contracted : ; Extension:   Date of Discharge: 20051021
Length of Service : 02 Yrs 03 Mths 29 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: NOT FOUND IN RECORD         Highest Rank /Rate : DC3
Evaluation marks (# of occasions):       Performance: 3.5 ( 2 )       Behavior: 2.5 ( 2 )                  OTA: 3.06
Awards and Decorations ( per DD 214): NMCAM, NDSM, GWOTEM, GWOTSM, SSDR

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

 20050804 :        NJP -- Viol UCMJ Art. 112a – Wrongful use methamphetamines ( per medical record) .
         Awarded - FOP ( $ 774.00 ) for ( 2 months); RIR ( E -3 ); Extra duties ( 45 days) .
20050819 :        Medical Record: Reason for visit: Discharged from psychiatric ward after admission on 20050814 for attempted suicide by hanging while intoxicated from crystal methamphetamine for pending administrative separation.
         Diagnosis: Axis I: Amphetamine dependence; Substance induced mood disorder; Alcohol dependence.
         Axis II: Deferred.
         Axis III: Status post toe fracture; Status post attempt at hanging, medically cleared.
         Axis IV: Occupational and legal stressors.
         Axis V: 51-60.
          Recommendation: Full duty for discharge processing; follow up Mental Health walk-in tomorrow; intensive outpatient SARP treatment; no medications required; not currently suicidal or homicidal, should become so or symptoms worsen agreed to report directly to nearest Mental Health Facility or ER.

Discharge Process

 Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge:     NOT FOUND IN RECORD
Least Favorable Characterization:        NOT FOUND IN RECORD
Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
 Rights Elected at Notification:            NOT FOUND IN RECORD (A dministrative Board waived per SPD code)

C ommanding Officer Recommendation (date):        NOT FOUND IN RECORD
Separation Authority (date):     NOT FOUND IN RECORD
Reason for discharge directed:  NOT FOUND IN RECORD
 Characterization directed:      NOT FOUND IN RECORD
Date Applicant Discharged:       20051021

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) VA Form 21-4138; DD Form 2527;

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, Articles 83, Fraudulent enlistment, appointment, or separation; and 112a, Wrongful use, possession, etc., of controlled substances.

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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