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NAVY | DRB | 2008_Navy | ND0801886
Original file (ND0801886.rtf) Auto-classification: Denied

ex-HR, USN
Current Discharge and Applicant’s Request
Application Received: 20080916
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) 20050916 - 20051114        Active:

Period of Service Under Review:
Date of Enlistment: 20051115     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20071128      Highest Rank/Rate: NFIR
Length of Service : Y ear s M onth s 14 D a ys
Education Level:        AFQT: 52
Evaluation M arks: Performance: NFIR Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      CAR ICM

Periods of UA /C ONF : SPCM: CC: Retention Warning Counseling :

NJP :
- 20060519 : Art icle 92 ( Failure to obey ), 2 specifications
Awarded : Susp ended : 17 days for 6 months

S CM :
- 20071120 : Article 112a (Drug abuse , wrongful use of cocaine on 20070909 and 20071009) , 2 specifications .
         Awarded : Susp ended:

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 :

Oth er Documentation :


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

Applicant’s Issues

1. F amily r equest s an upgrade on son’s behalf .

Decision

Date: 20 0 9 0114                  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 Naval Discharge Review Board offers its sincere cond olences to the family of the former service member for the loss of their son. It was with the greatest respect for his desire to serve our country the Naval Discharge Review Board considered the events and all available documentation leading up to his discharge and weighed those events against the standards of Naval discipline applied throughout our great Service. The Board members reflected on all the circumstances surrounding this tragic case.

 : (Equity) RELIEF NOT WARRANTED. The Board reviews the propriety and equity of a 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 a discharge is inconsistent with discipline standards of the Naval 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 on behalf of his son .

In the case of the member , the Board conducted a thorough review of his Service Records and the documents forw arded to the Board by his family . After reviewing the enlistment and entry medical forms the Board concluded, based on official documentation, there was no indication the member had used drugs prior to enlisting in the Navy. However, the Navy was aware he had a Driving Under the Influence ( DUI ) offense on 31 July 2004 in Norwalk, California and thus he received a waiver prior to his acceptance into the Navy. Additionally, he was granted a waiver for a petty theft offense prior to enlisting. Occasionally, those with similar problems desiring to serve their country believe joining the military will help them gain a clearer understanding of themselves and provide direction they previous have been unable to obtain on their own. It is the expectation of the U.S. Navy that the discipline, guidance, and responsibility one assumes upon being a Hospital Corpsman, attached to the Marines , removes most young men ’s desire to participate in drugs , excessive alcohol use or other potentially harmful behavior .

While at Hospital Corpsman Class “A” school in Great Lakes, Illinois, t he member was subject to NJP for a violation of the Uniformed Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation ), 2 specifications , on 19 May 2006. Thereafter, he reported to Twenty - nine Palms, California for duty and deployed with 2 nd Battalion, 7 th Marines, 1 st Marine Division from 30 January 2007 to 22 August 2007, where he served courageously on the battlefield . Shortly after returning stateside, he was subject to a S CM on 20 November 2007 for violation of the UCMJ: Article 112a (D rug use , wrongful use of cocaine ), on 2 separate occasions (9 September 2007 and 9 October 2007). The NDRB advises the family t hat certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a 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 spe cial or general court-martial. For the edification of the family , all service members separated for drug abuse are screened for drug dependency and provided the option of treatment prior to separation. The intent of this treatment is for the benefit of the member after discharge, not to rehabilitate the member for continued service.



Shortly after the S CM , he was administratively separated from the United States Navy on 28 November 2007 with an “Under Other Than Honorable” discharge characterization with the narrative reason for separation being “Misconduct (Drug Abuse)”, based on his Article 112a violation for using cocaine. Tragically, less than 4 months later after his military discharge , he was involved in a fatal traffic accident in Long Beach, California .

The Board found, a fter a thorough review of the former service member’s Summary of Service , Service Records, Discharge Process and additional evid ence submitted by his family that he was responsible and accountable for his misconduct while serving in t he U.S. Navy, thus relief is not warranted. The Board determined an upgrade in the discharge characterization to “General (Under Honorable Conditions)”, as requested, would be in appropriate.

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 s of the UCMJ : Article 92 (Failure to obey an order or regulation) and Article 112a (Drug abuse, wrongful use of a controlled substance).


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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