Search Decisions

Decision Text

NAVY | DRB | 2008_Navy | ND0801211
Original file (ND0801211.rtf) Auto-classification: Denied

ex-ABHAN, USN
Current Discharge and Applicant’s Request
Application Received: 20080515
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) 20030826 - 20031111                 Active:

Period of Service Under Review:
Date of Enlistment: 20031112     Period of E nlistment : Years Extension         Date of Discharge: 20060826
Length of Service : Y ear s M onth s 14 D a ys Education Level:     Age at Enlistment:     AFQT: 44
Highest Rank /Rate : ABHAN         Evaluation M arks: Performance: NFIR     Behavior: NFIR   OTA: NFIR
Awards and Decorations ( per DD 214): NDSM , SSDR , GWOTSM , GWOTEM

Period of UA : 20060530-20060531

NJPs :

S CMs :

SPCMs:

C C :
20051102 : Offense: Driving under a suspended license and posse s sion of marijuana.
Sentence : 30 days in jail with 30 days suspended, loss of operator's license for 60 days, $100.00 fine and $6.00
in court cost for the suspended license. 3 years probation, $192.00 in c ourt cost for the possession o
 marijuana. [Extracted from CO’s message]

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 . 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.




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

Applicant’s Issues

 1. Reenlistment opportunities .
2. Administrative Separation Board was unfair.
3 . Isolated incident.

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 (DRUG ABUSE) .
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning s , regarding .

: ( ) . 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. The Applicant’s record of service was marred by his illegal possession of a controlled substance (marijuana/THC) and driving under a suspended license. The Applicant contends his unfair treatment resulted in his inequitable characterization of service. T he Applicant has failed to produce any evidence of his unfair treatment other than his unsubstantiated allegations. In the case of drug use or possession , s eparation processing is mandatory , even for the first time offense, for all service members regardless of grade or time in service. The Applicant’s case was heard before an administrative board which unanimously voted he had violated the U niform C ode of M ilitary J ustice (UCMJ), Article 112a and that his conduct warranted a discharge with a n “ U nder O ther T han H onorable C onditions” characterization of service. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carry a maximum penalty of a dishonorable disc harge and up to 5 year s of imprisonment if adjudicated by a special or general court martial. There was no indication the administrative separation board treated the Applicant unfair during the board process; even though the Applicant may believe their decision was unfair, this would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The record clearly reflects his violation of UCMJ Article 112a and did not show that the Applicant was either not responsible for h is conduct or that he should not be held accountable for h is actions .

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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0801607

    Original file (ND0801607.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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...

  • NAVY | DRB | 2008_Navy | ND0801748

    Original file (ND0801748.rtf) Auto-classification: Denied

    The Board determined the characterization of service received was an appropriate characterization considering the length of service and the UCMJ violation involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.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...

  • NAVY | DRB | 2009_Navy | ND0900241

    Original file (ND0900241.rtf) Auto-classification: Denied

    The Board determined the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the length of service and the UCMJ violations involved, and based on the lack of post service documentation provided an upgrade would be inappropriate.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...

  • NAVY | DRB | 2008_Navy | ND0800876

    Original file (ND0800876.rtf) Auto-classification: Denied

    Types of Documents SubmittedRelated 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 Representation: From Member of Congress: Other Documentation (Describe) DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW...

  • NAVY | DRB | 2010_Navy | ND1000160

    Original file (ND1000160.rtf) Auto-classification: Denied

    Based on the Article 112a violation, processing for administrative separation is mandatory.When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, to submit a written statement for consideration by the separating authority, and to request an administrative board.The Applicant provided no additional documentation. ” Additional Reviews : After a document review has been conducted, former members are eligible...

  • NAVY | DRB | 2010_Navy | ND1000026

    Original file (ND1000026.rtf) Auto-classification: Denied

    Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ”...

  • NAVY | DRB | 2009_Navy | ND0901666

    Original file (ND0901666.rtf) Auto-classification: Denied

    The Applicant is referred to the addendum, Reenlistment/RE-code for further information regarding this issue.A thorough review of the circumstances which led to the Applicant’s discharge and discharge process revealed no issues of impropriety or inequity.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason...

  • NAVY | DRB | 2009_Navy | ND0901720

    Original file (ND0901720.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Wants his reentry (RE) code and separation code changed.2. Representation: By a vote of the Characterization shall .By a vote of the Narrative Reason shall .Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.In...

  • NAVY | DRB | 2011_Navy | ND1101014

    Original file (ND1101014.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive:USNR (DEP)20001212 - 20010819Active: Period of Service Under Review: Date of Current Enlistment: 20010820Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20040803Highest Rank/Rate:ABHANLength of Service: Years Months14 DaysEducation Level:AFQT: 33EvaluationMarks:Performance:3.5(4)Behavior:3.3(4)OTA: 3.29Awards and Decorations (per DD 214):NDSM SSDR...

  • NAVY | DRB | 2015_Navy | ND1500738

    Original file (ND1500738.rtf) Auto-classification: Denied

    By a vote of 3-0, the administrative separation board found that a preponderance of the evidence supports a finding of guilty and the Applicant was subsequently discharged on 20141219. : (Decisional) () . While there is evidence in the record documenting that the Applicant was receiving treatment for depression, there is no evidence supporting the notion that he was not responsible for his misconduct. ” Additional Reviews : After a document review has been conducted, former members are...