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NAVY | DRB | 2009_Navy | ND0900553
Original file (ND0900553.rtf) Auto-classification: Denied

ex-MMFA, USN
Current Discharge and Applicant’s Request
Application Received: 20090109
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)      20050518 - 20050605     Active:  

Period of Service Under Review:
Date of Enlistment: 20050606     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060919      Highest Rank/Rate: MMFN
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NDSM GWOTEM

Periods of UA /C ONF :

NJP :
- 20060727 : Art icle 112a ( Drug use, w rongful ly use marijuana )
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 :

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 .


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

Applicant’s Issues

 1. D id not wrongfully use marijuana .
2. Command did not allow him to leave the ship to take a voluntary polygraph.
3. Coerced by command legal in to waiv ing his administrative separation board .
4. Post service conduct.

Decision

Date: 20 0 9 0402             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 ’s representative is requesting an upgrade to “ G eneral (Under Other Honorable Conditions) ” and the narrative reason changed to “end of obligated service” based on the argument the Applicant did not wrongfully use marijuana , but was exposed to high levels of second hand smoke or high doses of Motrin . The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge and/or characterization of service if such a change is warranted. 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 reflect s he tested positive on a urinalysis 20 July 2006 and received NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 112a (Drug use, w rongful use of marijuana ) . T he Applicant’s statement of 21 July 2006, indicate s the following: 1) H e went to a bar in North Carolina and while drinking with some civilian friends, he noticed the room was getting “ pretty smokey , ” began feel ing lightheaded and went outside ; 2) After a few minutes he went back inside and the same feeling returned more intense ; 3) He noticed people were not just smoking cigarettes (did not specify what they were smoking), became frustrated , asked to leave and went outside because “my friends had put me in an uncomfortable position ” ; 4) He s tated he would never want to jeopardize his career for something as stupid as smoking weed ; and 5) He s igned th e statement acknowledging he had entered the Navy on a drug waiver.

In examining evidence, facts and circumstances unique this case , the Board determined there was credible evidence in the record t o support the discharge based misconduct due to drug abuse . The Board found the argument s and documentation provided by the Applicant’s counsel pertaining to passive inhalation of second hand marijuana smoke and false positive urinalysis due to ingestion of M otrin were not persuasive, e s pecially in light of the Applicant’s pre-service drug use and his own statement wherein he admit ted to knowingly sitting in a smoke filled room where his friends “were smoking something other than cigarettes ” . 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.

Based on the foregoing evidence, the Board determined the discharge characterization based on a violation of Article 112a (Drug use) was appropriate and a change in the narrative reason to “end of obligated service is not justified since he completed only one year and three months of his four year contract.

Issue 2: ( ) . The Applicant’s counsel is also seeking relief based on the argument the command did not allow the Applicant to go off base to obtain a voluntary pol ygraph. Pursuant to Bob C . ’s email of 22 August 2006, the Applicant volunteered to take a polygraph test while on restriction but did not make his appointment because he was


not allowed off the ship. The is no documentary evidence in the record or provided by the Applicant’s counsel to prove t he Applicant requested permission from the commanding officer to leave the ship for the purpose of a polygraph and his request
was denied. Furthermore, t he Applicant’s counsel does not cite any authority or regulation that grants the Applicant a right to leave the ship while in a restricted status without the commanding officer’s approval . The Board determined the emails p rovide d by the Applicant’s counsel in support of this argument were not persuasive evidence . There is no evidence of any wrongdoing by the command ’s legal representative or anyone else in the chain of command in the discharge process . The NDRB determined the awarded discharge was appropriate; an upgrade would be inappropriate.

: ( ) . Additionally, the Applicant’s counsel a vers the command’s “ legalman ” coerced the Applicant into waiving his administrative board and did everything in his power to thwart the Applicant’s efforts to meet with his civilian counsel . Per the Administrative Separation Processing Notice of 28 July 2006, the Applicant was notified of administrative processing due to drug abuse on 16 August 2006 and elected all of his rights pertaining to administrative separations, including the right to counsel with qualified counsel and an administrative board . On 24 August 2006 the Applicant was re-notified of administrative separation processing and waived all of his rights except to obtain copies of the documents to be forwarded to the separation authority. Based on the evidence of record, the Applicant was aware of his rights and exercised those rights as evidenced by the Applicant’s appeal of his NJP on 1 August 2006, consulting and retaining civilian counsel and elect i ng an administrative board , and subsequently waiv ing his all of his rights after being re-notified of admini strative separation processing a second time . T here is no evidence in the record or provided by the Applicant’s counsel to support the argument the command’s “ legalman ” coerced the Applicant into waiving his administrative board or attempted to thwart the Applicant’s efforts to meet with his counsel . The NDRB determined an upgrade based on this issue would be inappropriate.

Issue 4: ( ) . The Applicant’s petition indicates he is currently residing in Georgia with his family, has earned his bartending license, secured employment as a bar tender, started his own cleaning business, purchased a home, received certification as a commercial diver and medical diving technician , and has not engaged in any form of criminal misconduct after being discharged from the military . In addition to the statement of post service conduct, t he Applicant ’s counsel ha s s ubmitted documentation of post service education and training for the Board’s consideration.

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; 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. While the Board applauds the Applicant’s post service efforts, the Board determined the evidence of post-service conduct was not sufficient to warrant an upgrade.

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 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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