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NAVY | DRB | 2008_Navy | ND0801614
Original file (ND0801614.rtf) Auto-classification: Denied

ex-CTOSN, USN
Current Discharge and Applicant’s Request
Application Received: 20080722
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)      20010215 - 20010305              Active:

Period of Service Under Review:
 Date of Enlistment: 20010306      Period of E nlistment : Years Extension   Date of Discharge: 20050629
Length of Service : Y ear s M onth s 24 D a ys        Education Level:         Age at Enlistment:       AFQT: 59
Highest Rank /Rate :       CT03      Evaluation M arks: Performance:    4.2 ( 4 )   Behavior: 3.0 ( 4 )         OTA: 3.71
Awards and Decorations ( per DD 214):      NDSM LOC (4) LOA (2) JSAM NAM GCM OSR (2) GWOTSM FLOC (2)

NJP :
- 20050513 : Art icle 80 (Attempt , to possess ecstasy )
Awarded : Susp ended :

S CM : SPCM: C C :

Retention Warnings:
- 20010327 : For failure to obey order, rules and regulation of RTC.

Administrative Corrections to the Applicant’s DD 214

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

         , “ CTOSN ”
         “ E3 ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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) :
                           - Letters from Department of Veterans Affairs


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

Applicant’s Issues

 1. Record of service.
2. Isolated incident of misconduct.
3. Veteran’s Administration considers service honorable.
 4 . Not properly represented.
5. Mitigating circumstances.

Decision

Date: 2 0090107             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 she is entitled to a discharge upgrade because her misconduct was an isolated incident in an otherwise good period of service. 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 one retention warning and one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempt , to possess ecstasy) . The NDRB advises the Applicant that despite a Sailor’s prior record of service certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of the Navy drug policy is one such offense requiring mandatory separation regardless of time in service or grade. Violations of this policy result in , at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not pursue a punitive discharge but instead opted for an administrative discharge. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.
: ( ) . The Applicant contends she is entitled to a discharge upgrade because the Veteran Administration (VA) considers her service to be honorable. The Applicant submits letters from the VA to substantiate her contention. For the edification of the Applicant, the letter she submitted as evidence for this I ssue , explicitly states the decision to consider her service as honorable is only for “VA purposes”. The VA applies different criteria than the Navy in d etermin ing characterization of service and it is used for a different reason. The NDRB therefore re jects the Applicant’s contention. The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

: ( ) . The Applicant contends she is entitled to a discharge upgrade because she was not properly represented in regards to this incident. The record of evidence clearly shows the Applicant declined to speak with a lawyer prior to accepting NJP for her misconduct. If the Applicant felt at the time she was not guilty of the offense charged, she should have refused NJP and demanded trial by Court-Martial. The NDRB rejects the Applicant’s contention because she waived her rights to counsel and trial at the time of her misconduct. The Board determined the awarded discha r g e characterization was appropriate and a n upgrade would be inappropriate.

: ( ) . The A pplicant contends she is entitled to a discharge upgrade due to mitigating circumstances which contributed to her misconduct. Specifically, the Applicant lists the following circumstances; pregnancy; separation from husband and son; the death of her grandfather; medication which affected her judgment; and inadequate counseling from Navy. While the Applicant may feel these circumstances contributed to her misconduct, he r service and medical record s do not show where any military or medical official declared the Appl icant was not responsible for her actions or should not be held accountable for them based on the above reasons. Furthermore, the Applicant’s comments alone

do not prove she was not responsible for her actions and the Board did not consider these as substantial mitigating factors which relieved the Applicant of responsibility. The NDRB determined the awarded discharge characterization was appropriate and an upgrade founded upon these circumstances 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

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 80.

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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