Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900354
Original file (ND0900354.rtf) Auto-classification: Denied

ex-ETSA, USN
Current Discharge and Applicant’s Request
Application Received: 20081202
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: USNR (DEP): NONE       Active: 

Period of Service Under Review:
 Date of Enlistment: 20030128     Age at Enlistment:
Period of Enlistment : Years Extension
Date of Discharge: 20040427      Highest Rank/Rate: ETSN
 Length of Service: Year Month(s) 00 D ay(s)
Education Level:         AFQT: 74
 Evaluation Marks:        Performance: 2.0 (1)     Behavior: 2.0 (1)        OTA: 2.00
Awards and Decorations (per DD 214):     Rifle Pistol

Periods of UA/CONF:

NJP:
- 20040204 :      Article 92 (Failure to obey an order or regulation), 2 specifications
         Article 112a (Drug abuse, wrongful use of a controlled substance, cocaine)
          Awarded: Suspended:

SCM: SPCM: CC:

Retention Warning Counseling:

- 20031206 : For exceeding height/weight and body fat limits.
- 20040204: For NJP for violations of UCMJ, Article 92 and Article 112a.
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 Representation:     From Congress member:
Other Documentation:




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

Applicant’s Issues
1. Reenlistment opportunities.
2. Discharge was inequitable and unjust.

Decision

Date: 20090305 Location: Washington D.C.        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT.
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 , regarding .

: ( ) . The Applicant contends his discharge was inequitable and unjust because he was coerced into making false statements and was not given ample time prior to Captains Mast and to consult with counsel. 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 an NJP for violations of the Uniformed Code of Military Justice, Article 92 (Failure to obey an order or regulation) and Article 112a (Drug abuse, wrongful use of a controlled substance - cocaine). The NDRB advises the Applicant 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 special or general court-martial. The command did not pursue a punitive discharge but opted instead for an administrative discharge.

Initially, the Applicant was implicated by another Sailor who was being investigated for using and dealing drugs. The records show the Applicant was read his Article 31 rights (Suspect’s Rights Acknowledgement Statement) on three different occasions: 12 January 2004, 14 January 2004 and 26 January 2004. The Applicant gave a voluntary statement (non-confession to drugs) on 12 January 2004. On 14 January 2004, he asked and was granted the right to consult with a lawyer 10 minutes after signing his Article 31 Rights. On 26 January 2004, the Applicant gave a voluntary statement he used Cocaine once between the dates of 27 December 2003 and 3 January 2004. All statements were given freely and without any threats or promises, confirmed by the Applicants initials and/or signature. Also, the Applicant consented to a drug test using a urine sample. The test came back negative, but this would not be a surprise since the sample was taken 9 days after the latest date the Applicant confessed to usage. The widely accepted time period for benzoylecgonine (the metabolite in cocaine being measured) to be cleared from the urine is three to five days. It can be detected longer for those that are considered chronic or high dose users. The Board does not think the Applicant fit that description and was considered an experimental user.

The Applicant appeared before Captain’s Mast on 4 February 2004. He was found guilty of violations of the UCMJ, Article 92 (Failure to obey an order or regulation –specifically drinking underage and failing to report offenses by other Sailor’s) and Article 112a (Drug abuse, wrongful use of cocaine). The Applicant was awarded 45 days restriction; 45 days extra duty; forfeiture of $596.00 pay per month for 2 months and reduction to the next inferior pay grade (E-2). The Applicant appealed the NJP to the Commander of Submarine Group TWO. The Commander, after referring this case to his Staff Judge Advocate for consideration and advice, determined there was sufficient credible evidence to uphold the decision, thus formally denying the appeal put forth by the Applicant. Prior to being administratively processed due to drugs, the Applicant chose to appear before an Administrative Board to review the circumstances leading to his potential separation from the Navy. The Administrative Board convened, heard all pertinent information and unanimously voted (3-0) on all accounts the preponderance

of the evidence supports the Applicant committed misconduct and should be separated from the Navy with a recommended characterization of service of “Under Other Than Honorable Conditions.” Based on the circumstances leading to the Applicants discharge, the Board determined an upgrade would be inappropriate.
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation of a drug free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicants statement on the DD Form 293, he provided service related documents, character references and correspondence with his Congressional Representatives on his behalf. However, to warrant an upgrade the Applicant’s post service efforts need to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. 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 limited 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

Pertinent Regulation/Law

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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 violations 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, provided 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 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, 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.
Employment/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

  • USMC | DRB | 2008_Marine | MD0801384

    Original file (MD0801384.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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 limited post service documentation provided an upgrade would be inappropriate. ” Additional Reviews : Subsequent to a document review, former members...

  • NAVY | DRB | 2007_Navy | ND0700289

    Original file (ND0700289.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall MISCONDUCT. ” 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. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.

  • NAVY | DRB | 2008_Navy | ND0801886

    Original file (ND0801886.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)20050916 - 20051114Active: Period of Service Under Review: Date of Enlistment: 20051115Age at Enlistment:Period of Enlistment: YearsExtensionDate of Discharge:20071128Highest Rank/Rate:NFIRLength of Service: Years Months14 DaysEducation Level:AFQT: 52EvaluationMarks:Performance:NFIRBehavior:NFIROTA: NFIRAwards and Decorations (per DD 214): CAR ICMPeriods of...

  • USMC | DRB | 2009_Marine | MD0900302

    Original file (MD0900302.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...

  • USMC | DRB | 2008_Marine | MD0801423

    Original file (MD0801423.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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): - Character Witness Statements DEPARTMENT OF THE NAVYNAVAL DISCHARGE...

  • USMC | DRB | 2009_Marine | MD0900679

    Original file (MD0900679.rtf) Auto-classification: Denied

    The NDRB determinedthe Applicant knowingly used cocaine and that the awarded discharge characterization was appropriate; an upgrade based on mitigating circumstances as described by the Applicant would be inappropriate.The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Should the Applicant obtain additional evidence or post service documentation he may wish to apply for a personal appearance. After a thorough review of the available evidence,...

  • NAVY | DRB | 2009_Navy | ND0900261

    Original file (ND0900261.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 Presiding Officer’s Signature:_______________________________________ 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...

  • NAVY | DRB | 2008_Navy | ND0800631

    Original file (ND0800631.rtf) Auto-classification: Denied

    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 92, 112a and 134. ” 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,...

  • NAVY | DRB | 2009_Navy | ND0900184

    Original file (ND0900184.rtf) Auto-classification: Denied

    CA Action: 20000817: 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...

  • USMC | DRB | 2007_Marine | MD0700184

    Original file (MD0700184.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. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.