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NAVY | DRB | 2008_Navy | ND0800221
Original file (ND0800221.rtf) Auto-classification: Denied

ex-ABFAR, USN
Current Discharge and Applicant’s Request
Application Received: 20071115
Characterization of Service Received:
Narrative Reason for Discharge: (DRUG ABUSE)
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20041028 - 20041101              Active:
Period of Service Under Review:
 Date of Enlistment: 20041102      Period of enlistment : Years Extension          Date of Discharge: 20070713
Length of Service : Yrs Mths 12 D ys      Education Level:         Age at Enlistment:       AFQT: 61
Highest Rank /Rate : ABFAN          Evaluation marks: Performance: 3.5 ( 2 )     Behavior: 3.0 ( 2 )          OTA: NFIR
Awards and Decorations ( per DD 214):

Periods of UA /C ONF : /20070327-20070419 (24 days)

NJPs :    
         20050802 : Art(s) 134 . Awarded - Susp -

S CMs :   
         20070327 : Art(s) 112a . Sentence -

Retention Warnings: .
         20050802 : For NJP on 20050802 .

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              To M ember of Congress:
Other Documentation (Describe) Standards g overning d rug a buse u rine t esting l aboratories for g overnment a gencies article (promulgated by the Department of Health, Executive Yuan, 24 December 2003)
Regulations governing drug abuse urine testing operations for government agencies article (promulgated by the Department of Health, Executive Yuan, 24 December 2003)
 Three pages from F ederal Register/Vol 89, No 71/Tuesday, April 13, 2004/Notices about laboratory analysis procedures
Drug testing accuracy and standards article
Department of Defense Instruction 1010.16

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Discharge was inappropriate because of one positive urinalysis and a delay of 154 days before notification.
2. Urinalysis Program procedures were not followed per the Federal Register
3 . Not represented by legal
4. Service Record

Decision

Date: 20 08 0404             Location: Washington D.C         R epresentation :

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

Issue 1 : ( ). The Applicant should be aware that the Statute of Limitations for a violation of the Uniform Code of Military Justice adjudicated at nonjudicial punishment or summary court martial is 24 months .

Issue 2: ( ). The Board found that the procedures and thresholds established by the Navy’s Alcohol and Drug Abuse Prevention and Control Instruction. (OPNAVINST 5350.4C) were followed.

Issue 3: ( ). The Applicant a cknowledged his rights to a Summary Court Martial which were the right to consult with a lawyer to make a determination to accept or not accept a Summary Court and that the accused in a Summary Court Martial was authorized to be represented by civilian counsel at the expense of the accused , or by military counsel, if the appearance did not unreasonably delay the summary court martial. The Applicant elected to consult with military counsel and consented to trial by summary court martial.

Issue 4: ( ). The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. There is credible evidence in the record that the Applicant wrongfully used a controlled su b stance and established a pattern of misconduct . The evidence of record does not demonstrate that the Applicant was not responsible for h is c onduct or that he should not be held accountable for h is actions. When a Sailor ’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A under other than honorable conditions discharge 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. C ertain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by one retention warning, one nonjudicial punishment for a violation of UCMJ Article 134 ( Disorderly conduct), and one Summary Court s- Martial finding of guilty for Article 112a (Wrongful use of a controlled substance) . V iolation of Article 112a is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts - Martial. An upgrade to honorable 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

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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