Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900321
Original file (ND0900321.rtf) Auto-classification: Denied

ex-MM3, USN
Current Discharge and Applicant’s Request
Application Received: 20081125
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)      20040310 - 20040324     Active:  

Period of Service Under Review:
Date of Enlistment: 20040325     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070605      Highest Rank/Rate: MM2
Length of Service : Y ear ( s ) M onth ( s ) 11 D a y ( s )
Education Level:        AFQT: 72
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 1.3 ( 3 )        OTA: 2.37

Awards and Decorations ( per DD 214):      NDSM GWOTSM GCM Rifle Pistol ESWS SDPP

Periods of UA /C ONF :

NJP :
- 20070507 :       Art icle 8 1 ( Conspiracy )
         Article 112a ( Drug use, w rongful possession of a controlled substance)
         Article 134 (General article)
         Awarded : Susp ended :

S CM : SPCM: C C : Retention Warning Counseling :

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. Discharge inequitable because based on one isolated incident in 39 months of service with no other adverse action.
2. Never used drugs or failed a drug test.

Decision

Date: 20 0 9 0305             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 was inequitable because it was based on one isolated incident in 39 months of service and he never used drugs or failed a drug test . The Applicant’s service record is marred by an award of NJP on 07 May 2007 for violations of the Uniform Code of Military Justice (UCMJ): Article 81 ( Conspiracy to distribute marijuana ), Article 112a (Drug use, w rongful possession of a controlled substance , marijuana ) and Article 134 (W rongfully solicit ed another military member to purchase a c ontrolled substance , marijuana) . These are serious violations which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not choose to pursue a punitive discharge but opted instead for an administrative separation. The NDRB advises the Applicant certain serious offenses , even though isolated, 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 special or general court-martial.

There is credible evidence in the record to support the basis for discharge due drug abuse. Per the commanding officer’s letter of 17 May 2007, the Applicant purchased marijuana seeds over the internet, cultivated six marijuana plants in his residence , attempted to sell or sold four of the plants to another service member and admitted to attempt ing to smok e the marijuana he grew on several occasions . The evidence also indicates there were 270 files downloaded to the Applicant’s computer, depicting the marijuana plants in various stages of growth . The Applicant’s contention s that his misconduct was an isolated incident and he never used drugs are refuted by the evidence of record as previously noted . There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s misconduct is clearly documented. Based on the seriousness of the offenses committed, length of service, and lack of extenuating circumstance the Board determined the awarded discharge was appropriate and an upgrade is not warranted.

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

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0801376

    Original file (ND0801376.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)20050521 - 20051205Active: Period of Service Under Review: Date of Enlistment: 20051206Period of Enlistment: YearsExtensionDate of Discharge:20070307Length of Service: YearMonths02 DaysEducation Level: Age at Enlistment:AFQT:75Highest Rank/Rate:ETXNEvaluationMarks:Performance:NFIR Behavior:NFIROTA:NFIRAwards and Decorations (per DD 214):Periods of UA/CONF:...

  • USMC | DRB | 2008_Marine | MD0801245

    Original file (MD0801245.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Employment opportunities. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2008_Navy | ND0801561

    Original file (ND0801561.rtf) Auto-classification: Denied

    ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. If a former member has been discharged for more than 15 years, has already been granted 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,...

  • USMC | DRB | 2009_Marine | MD0900852

    Original file (MD0900852.rtf) Auto-classification: Denied

    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...

  • NAVY | DRB | 2009_Navy | ND0900258

    Original file (ND0900258.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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 Representation:From Congress member: Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • NAVY | DRB | 2009_Navy | ND0900694

    Original file (ND0900694.rtf) Auto-classification: Denied

    The Board determined the awarded discharge was appropriate and an upgrade based on an isolated incident would be inappropriate.The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and DD Form 293 submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe...

  • USMC | DRB | 2009_Marine | MD0902237

    Original file (MD0902237.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal...

  • NAVY | DRB | 2008_Navy | ND0801439

    Original file (ND0801439.rtf) Auto-classification: Denied

    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.However, in the Applicant case, the evidence reflects he committed numerous offenses during this enlistment, thus contradicting his allegation the discharge is based on one isolated incident.The Applicant's misconduct is documented in his service record, which is marred by...

  • NAVY | DRB | 2008_Navy | ND0801367

    Original file (ND0801367.rtf) Auto-classification: Denied

    For the record, the Applicant had requested on his DD Form 293 to change the narrative reason to “Hardship/Medical.” During the Applicant’s pre-board meeting with the NDRB representative, the Applicant decided not to request the change because he did not have any documentation to warrant this request. ” Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the...

  • NAVY | DRB | 2009_Navy | ND0900650

    Original file (ND0900650.rtf) Auto-classification: Denied

    Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service or grade. The NDRB determined the awarded discharge characterization was appropriate and an upgrade based on a claim his command was apathetic towards him 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...