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NAVY | DRB | 2008_Navy | ND0800668
Original file (ND0800668.rtf) Auto-classification: Denied

ex-SHSA, USN
Current Discharge and Applicant’s Request
Application Received: 20080325
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20000224 - 20000314              Active: USMC 19980903 – 19981110 ELS
Period of Service Under Review:
 Date of Enlistment: 20000315      Period of enlistment : Years Extension          Date of Discharge: 20040301
Length of Service : Yrs Mths 16 D ys      Education Level:         Age at Enlistment:       AFQT: 42
Highest Rank /Rate : SH3    Evaluation marks: Performance: 3.2 ( 4 )     Behavior: 3.2 ( 5 )          OTA: 2.83
Awards and Decorations ( per DD 214): (2) NGCM BATTLE “E” (2)

Periods of UA /C ONF :

NJPs :    
         200 3 100 2 : Art 86 (Going from appointed place of duty) ;
Art 92 (Dereliction of duty) .
Awarded - Susp -
         20040210 : Art 112a (Wrongful use of a controlled substance) . Awarded - Susp -
        
Types of Documents Submitted/reviewed

 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 :              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Discharged by command after he tested positive for HIV.
 2. Isolated incident.

Decision

Date: 20 08 0530   Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .
Discussion

 ( ) : . The Applicant contends his discharge should be upgraded because his command “pushed him out of the Navy” after he tested positive for HIV and failed to look at all the findings before separating him. 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. There is credible evidence in the record the Applicant used illegal drugs. Pursuant to a Navy drug lab message from Jacksonville, Florida of 5 February 2004 , the Applicant tested positive for THC at 43ng/ml; the cut off level is 15ng/ml. 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. The record reflects the Applicant was notified of administrative separation processing for misconduct due to drug abuse on 10 February 2004 and waived all of his rights except to obtain copies of documents that would be forwarded to the separation authority. The Applicant was subsequently approved for discharge due to drug abuse o n 27 February 2004 and finally discharged on 1 March 2004. This evidence refutes the Applicant’s allegation he was rushed out of the Navy after testing positive for HIV and given an inadequate review by the separation authority. The Board found no indication in the record , nor did the Applicant present evidence , to prove he was inequitably or improperly discharged as a result of his HIV status. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Therefore , the Board determined an upgrade was not warranted.

( ) : . The Applicant contends he had no incidents while on active duty for 44 months and 17 days and his drug usage was an isolated incident. He claims he was dealing with very stressful marital problem s and made an “un - smart choice ” that he regrets on a daily basis. The 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. The Applicant's misconduct is documented in his service record, which is marred by the finding at a non - judicial pun ishment (NJP) proceeding on 10 February 200 4 for a violation of UCMJ , Article 112a, Wrongful use of a controlled substance ; and a previous NJP on 2 October 2003 for violation of UCMJ, Article 86, Unauthorized absence and Article 92, Dereliction of duty.

Although Applicant alleges his discharge was too h arsh in light of his personal problems, his administrative separation was for abuse of a controlled substance. Individuals are indoctrinated from the day of recruitment and have had the policy reinforced through annual Navy-wide training sessions throughout their enlistment on the U.S Navy’s zero tolerance policy for substance abuse. Violations of this policy result in mandatory processing for administrative separation which usually results in an unfavorable characterization of discharge. Accordingly, this misconduct substantiates the narrative reason for his separation as well as his characterization of service under other than honorable conditions. The Board determined an upgrade was not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found






Pertinent Regulation/Law

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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 , Drug abuse .


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 other medical related reasons. 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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