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NAVY | DRB | 2009_Navy | ND0900540
Original file (ND0900540.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20081231
Characterization of Service Received:
Narrative Reason for Discharge: (SERIOUS OFFENSE)
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20040324 - 20040901     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20040902     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070501      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 00 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 3.0 (2)      Behavior: 3.0 (2)        OTA: 3.17

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP :
- 20050519 :       Art icle 112a (Drugs - marijuana)
         Awarded : Susp ended :

- 20070309 :       Article 86 (UA 0700, 20070201 - 0900, 20070309 (36 days))
         Article 87 (Missing movement)
         Awarded: Suspended:

- 20070323 :      Article 112a (Drugs - marijuana)
          Awarded: Suspended: Appealed. Appeal denied 20070328

S CM :    SPCM:    C C :

Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20080404
NDRB Documentary Review Docket Number:   ND08-00352
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.






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 /To Representat ion :            From /To Congress m ember :         

Oth er Documentation :   

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 86, 87 and 112a .



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

Applicant’s Issues

 1.       Denies drug use.
2.       Unauthorized absence (UA) mitigated by misdiagnosis and mistreatment.
3.       Coerced into providing urinalysis.
4.       Denied the right to counsel pre-mast.
5.       Post-service conduct.
Decision

 Date: 20 1 0 0324             Location: Washington D.C .        R epresentation :

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 reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service includes three nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Unauthorized absence s totaling 36 days – 1 specification) , Article 87 (Missing ship’s movement – 1 specification) , and Article 112a (Drug abuse, marijuana - 2 specifications). Based on the drug offenses committed, processing for administrative separation is mandatory. When notified of administrative separation processing, the Applicant waived his rights to consult with qualified counsel, submit a written statement, and request an Administrative Board.

: (Decisional) ( ) . The Applicant appeared before the NDRB without representation requesting an upgrade to Honorable, contending that : 1) he was not properly discharged since he did not use drugs , 2) his medical problem (calluses) were misdiagnosed and he was discriminated against by personnel within his chain of command, 3) he was coerced into providing a urine sample after returning from an UA period of over 30 days, and 4) was denied the right to consult with counsel prior to going to NJP . T he Commanding Officer’s (USS IWO JIMA LHD 7) letter of 19 April 2007, contains the following comments: 1) during the 26 months the Ap plicant ha s been on board he has been to NJP three times; 2) his first awarded NJP was for wrongful use of a controlled substance; 3) he was processed for separation due to drug abuse, convinced the administrative separation board that he committed no misconduct and was retained in the Navy; 4) almost two years later, the Applicant received his second NJP f or a 36 day UA and missing ship’s movement (both which are serious offenses) and voluntarily consented to a urinalysis as a result of his UA period; 5) he was notified of administrative separation processing due to the commission of a serious offense (COSO) with a least favorable characterization of General (Under Honorable Conditions); 6) before the separation processing was completed the Applicant tested positive for marijuana – THC level of 18 ng/ m l ; and 7) the Applicant was awarded a 3 rd NJP for drug abuse, renotified of administratively separat ion due to COSO and drug abuse with a least favorable character ization of Other Than Honorable .

Based on a review of the record of evidence , statements and testimony of the Applicant , the Board determined the following : 1) there is sufficient evidence to substantiate a basis for discharge due to COSO as evidenced by the Applicant’s UA for over 30 days and missing ship’s movement ; 2) t here is sufficient evidence to substantiate a basis for discharge due to drug abuse as evidenced by the Applicant’s positive urinalysis ; 3) based on the seriousness and frequency of the violations committed an upgrade to Honorable is not warranted and that s eparation under these conditions usually results in characterization of service as U nder O ther T han H o norable C onditions ; 4) the re was insufficient evidence to support the Applicant’s contention that he was discriminated against because he is an Ethiopian ; 5) there was insufficient evidence to support the contention that the calluses on his feet were misdiagnos ed and improperly treated , and even if such evidence existed , it would not mitigate the misconduct committed by the Applicant ; 6 ) there is no evidence in the record or presented by the Applicant to support the contention that he was forced to provide a urinalysis sample and as indicated in his own testimony, he consented to the urinalysis after returning from an UA ; and 7 ) the Applicant has not provided any evidence to prove he was entitled to consult with counsel while attached to a vessel and that he suffered harm as a result of the denial of such request.

Issue 5 : (Decisional) ( ) The Applicant also testified that he is currently not employed, married and has six children. He submitted a criminal background check and character references from his former employers, a command chaplain and his pastor for the Board’s consideration. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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 in-service misconduct was an aberration and not indicative of the member’s overall character. The Board found that the Applicant had submitted credible evidence indicative of good post-service conduct, and commends the Applicant’s apparent rehabilitative success to date. However, after a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time.

Although not identified on his statement of issues, the Applicant contends that he was not provided a medical evaluation within 180 days afte r returning from his deployment, as required by Military Personnel Manual 1910 -702. Due to the insufficiency of evidence in the Applicant’s record and his failure to provide any medical records or other documentation to support this contention , the NDRB is unable to make a determination regarding this issue. Furthermore, the Applicant has not provided any testimony or documentation which indicates that that he has suffered from or is currently suffering from post traumatic stress disorder, traumatic brain injury or any other condition as a result of being deployed and that such condition was a contributing factor to the conduct forming his basis for discharge.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain and the narrative reason for separation shall remain .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

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 NDRB 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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