Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900926

Original file (ND0900926.rtf) Auto-classification: Denied

ex-FC3, USN

Current Discharge and Applicant’s Request

Application Received: 20090309

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)        19990311 - 19990524     Active:

Period of Service Under Review:
Date of Enlistment: 19990525     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051123      Highest Rank/Rate: FC2
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 3.8 ( 8 )      Behavior: 3 .2 ( 8 )        OTA: 3.66

Awards and Decorations ( per DD 214):      GCA (2) NAM BATTLE”E

Periods of UA /C ONF :

NJP :
- 20051110 :       Art icle 112a ( Drug abuse, Wrongful use of a controlled substance: M arijuana )
         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. Reenlistment opportunities .
2. Unjust d ischarge .

Decision

Date : 20 0 9 0811 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

: either an issue the Board cannot form the ba sis 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 .

: (Decisional) ( ) . The Applicant claims her discharge was improper due to lack of judicial process , and that she was taking high doses of Mo trin for her pregnancy-induced s ciatica. 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 one nonjudicial punishment ( NJP ) for violation of the U niform Code of Military Justice: Article 112a (W rongful use of a controlled substance: marijuana) per Navy Drug Lab message . The NDRB advises the Applicant certain serious offenses warrant separation from the service in order to maintain proper order and discipline. Article 112a is one such offense requiring, at a minimum, mandatory processing for an administrative separation , although commanders may seek retention approval from the separation authority in rare cases. Separation for use of illegal drugs usually results in an unfavorable characterization of discharge . Commanders may also pursue confinement and punitive discharge through a special or general court-martial . The command did not pursue a punitive discharge or retention, but opted instead for an administrative discharge. According to the Applicant’s separation code on her DD 214, she waived her right to have her case heard by an administrative discharge board.

The Applicant said that after testing positive, she was sent to the unit’s legal office, at which time she allegedly asked to participate in another test. She added that legal office personnel were unable to help her with her situation , noting that command was under no obligation to re-test her . For the Applicant’s edification, u nless a person is a chronic user, a second urinalysis would be futile , due to the fact that the drugs that were a result of the person’s first posi tive sample will, more than likely, no longer be in their system. Marijuana will normally only be detectable up to 3-5 days after use for an occasional user. NDSL conduct s an initial screening test on all specimens. The screening test detects a class of drugs. Negative specimens are discarded. If a sample screens positive during the initial screening it is then tested a second time. If the sample screens negative during the second screening it is discarded. If the sample screens positive a second time it is considered a “presumptive positive.” All “presumptive positive” specimens undergo a gas chromatography/mass spectrometry ( GC/MS ) confirmation test. A GC/MS test is a separate test to confirm the presence of a drug in a sample. The GC/MS test detects a specific drug or a metabolite of a drug. All three tests must be positive above the established DoD threshold level of drug metabolite and pass scrutiny in numerous reviews by drug testing experts prior to being certified as a positive result and reported to the originatin g command. This certification, which is made by a senior chemist, is the final seal of approval necessary prior to reporting the specimen as a positive. If the final certifying official has any doubt as to the accuracy, scientific validity or legal defensibility of the test results, the specimen is reported as negative in favor of the service member.

T he Applicant said she was taking high doses of Ibuprofen (Motrin) at the time , due to pregnancy -induced S ciatica and states that Ibuprofen ca n cause false THC test results. T he GC-MS has been widely heralded as a "gold standard" for forensic substance identification because it is used to perform a specific test . A specific test positively identifies the actual presence of a particular substance in a given sample. In addition, due to her pregnancy and post-partum treatment , the Applicant’s command would have go ne through her medical records for medications she was taking to rule out any possible conflicts. Therefore, it’s the Board’s opinion that the Applicant used marijuana, at least once, to either relieve pain for her sciatica or for recreational purposes. The Board determined the characterization of service was warranted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain (DRUG ABUSE).

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 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.

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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NAVY | DRB | 2009_Navy | ND0900926

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