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NAVY | DRB | 2008_Navy | ND0801195
Original file (ND0801195.rtf) Auto-classification: Denied

ex-ET3, USN
Current Discharge and Applicant’s Request
Application Received: 20080506
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) 20010516 - 20010522                 Active:

Period of Service Under Review:
Date of Enlistment: 20010523     Period of E nlistment : Years Extension   Date of Discharge: 20061201
Length of Service : Y ear s M onth s 09 D a ys Education Level:     Age at Enlistment:      AFQT: 82
Highest Rank /Rate : ET2   Evaluation M arks: Performance: 5 ( 1 )      Behavior: 4 ( 1 )   OTA: 4.43
Awards and Decorations ( per DD 214): (2), , , , , CGSOC

Periods of UA /C ONF :

NJPs :
20060816 : Art icle 112a (Wrongful use of controlled substance, THC)
Awarded : , , Susp ended :

S CMs :

SPCMs:  

C C :

Retention Warnings: .

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ 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 Congress m ember :

Other Documentation (Describe) :







Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 .




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

Applicant’s Issues

 1. Isolated incident.
2. Record of service.
3 . Unintentional ingestion of THC.

Decision

Date : 20 08 0925             Location: Washington D.C .        R epresentation :

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

 Issue s 1 -2 : (Equity) RELIEF NOT WARRANTED. The Applicant stated his discharge was based on one isolated incident . For the edification of the Applicant, d espite a service member’s prior record of se rvice certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. Additionally, the Applicant should be aware an administrative discharge is not punishment. The decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or non - judicial punishment. The characterization of service is a description of the total service provided during the member’s enlistment. The Applicant’s service was marred by his violation of the U niform C ode of M ilitary J ustice, Article 112a (Drug use), which constitutes the “commission of a serious offense”, the discharge basis in this case. This specific violation is punishable by a bad conduct discharge and up to 2 years of imprisonment if adjudicated by a special or general c ourt -m artial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

While the Board acknowledges the Applicant’s overall service record and commends him on the prep ar ation of the discharge review package he submitted to the NDRB , these efforts did not mitigate the misconduct. The Article 112a violation notwithstanding, the Applicant’s service record speaks for itself and there is no reason to believe his command did not take that into account during the discharge phase of his processing. As stated above, certain serious offense warrant separation from naval service; illegal drug use is one such offense. Additionally, a “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The illegal drug use constitutes a significant negative aspect of the Applicant’s
5 year career and the awarding of a “General (Under Honorable Conditions)” was appropriate. W hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel , it is appropriate to characterize that service under “H onorable ” conditions. The Board determined an upgrade to “Honorable” would be inappropriate as illegal drug use is not accepted conduct for military personnel.

Issue 3 (Equity) RELIEF NOT WARRANTED. The Applicant contends he erroneously tested positive for illegal drugs. In reviewing discharges, the Board presume s regularity in the conduct of g overnment affairs unless there is substantial credible evidence to rebut th e presumption . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention his positive drug test was in error or he consumed THC by innocent ingestion through passive inhalation as claimed. The Applicant’s tested positive for THC with 35 NG/ML; the DOD established cut off limit for THC is 15 NG/ML. The Applicant tested over 2 times the DOD established cut off limit which brings into question innocent ingestion through passive inhalation. The Board determined an upgrade would be inappropriate.

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. In the Applicant’s case, the Board could discern no impropriety or inequity in the discharge process.

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

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 or is referred to a court martial 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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