ex-AZ3, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090305
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) 20001026 - 20001227   Active:          20020320 -
20060827
      USNR (DEP) 20020130 - 20020319

Period of Service Under Review:
Date of Enlistment:  20060828     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  20070619 Highest Rank/Rate:  AZ3
Length of Service:   Year(s)     Month(s)   22 Day(s)
Education Level:       AFQT:  53
Evaluation Marks:      Performance:  3.0 (1) Behavior:  2.0 (1)     OTA:
2.83
Awards and Decorations (per DD 214):
Periods of UA/CONF:

NJP:
    - 20070322:  Article 112a (Drug use, wrongful use of controlled
             substance, marijuana)
      Awarded:   Suspended:

SCM:          SPCM:           CC:

Retention Warning Counseling:
    - 20070322:  For wrongful use of marijuana.

            Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

       Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded
or Authorized “GOOD CONDUCT AWARD, NATIONAL DEFENSE SERVICE MEDAL, GLOBAL
WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE
MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2)”

The NDRB will recommend to the Commander, Navy Personnel Command, that the
DD 214 be corrected as appropriate.

                    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. Applicant claims that he “had never used any illegal substances.”

                                  Decision

Date:  20090702        Location:  Washington D.C.  Representation:

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

                                 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 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 reflects one NAVPERS 1070/613 (Page 13)
warning and one NJP for violation of the Uniform Code of Military Justice
(UCMJ): Article 112a (Wrongful use of controlled substance, marijuana – 20
ng/ml).  The threshold amount for testing is 15 ng/ml for marijuana.  The
Board did note that the Applicant was released from the delayed entry
program for using marijuana twice and subsequently required a pre-service
drug waiver prior to enlisting the Navy.  He also completed all “U.S. Navy
Zero Tolerance for Drug Abuse” training modules while in the delayed entry
program on 19 March 2002.   Based on the offense committed, processing for
administrative separation is mandatory. During administrative separation
processing, the Applicant waived  right to submit a written statement, but
elected to consult with qualified counsel and requested an administrative
discharge board. The NDRB was unable to obtain the administrative discharge
board’s recommendations.

:  ()  .  The Applicant contends he never used any illegal substances
previously throughout his career.  The NDRB advises the Applicant certain
serious offenses, even though isolated, warrant separation from the service
to maintain proper order and discipline.  Article 112a is one such offense
requiring, at a minimum, mandatory processing for an administrative
separation, which usually results in an unfavorable characterization of
discharge.  Commanders may seek a punitive discharge and possible
confinement for this offense if adjudicated and awarded as part of a
sentence by a special or general court-martial. The Applicant’s command did
not pursue a punitive discharge but opted instead for an administrative
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
and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of  discharge.  The Applicant is
directed to the Addendum, specifically the paragraphs titled Additional
Reviews, Automatic Upgrades, and Post-Service Conduct.

                          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.



                  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.

Post-Service Conduct:  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 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.

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