ex-STSN, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090310
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) 19990713 - 20000326   Active:       20000327 –
20030516  HON

Period of Service Under Review:
Date of Enlistment:  20030517     Age at Enlistment:
Period of Enlistment:   Years   Extension
Date of Discharge:  20041122 Highest Rank/Rate:  STS3
Length of Service:   Year(s)     Month(s)   05 Day(s)
Education Level:       AFQT:  74
Evaluation Marks:      Performance:  4.0 (2) Behavior:  3.5 (2)     OTA:
3.78

Awards and Decorations (per DD 214):      NEM

Periods of UA/CONF:

NJP:
    - 20040912:  Article 112a (Wrongful use, possession of controlled
             substance, methamphetamine)
      Awarded:    Suspended:
SCM:

SPCM:

CC:

Retention Warning Counseling:

            Administrative Corrections to the Applicant’s DD 214

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

        “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20000327 UNTIL 20030516”

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:

                          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 violation of the UCMJ, Article 112a (Drug
use).




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

                             Applicant’s Issues

1. Applicant claims his discharge was based on one incident in 56 months of
service.
2. Applicant seeks consideration for his record of service.

                                  Decision

Date:  20090820        Location:  Washington D.C.  Representation:

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

                                 Discussion

:  ()  .  The Applicant contest that discharge was based on one incident in
56 months of service without any adverse action and that his military
service was honorable.  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 NJP
for violation of the Uniform Code of Military Justice (UCMJ): Article 112a
(drug use, wrongful use of a controlled substance, METHAMPHETAMINE).  It
was noted that the drug level detected in the Applicant’s system for
methamphetamine was 1,326ng/ml—the threshold level for a positive reading
is 500ng/ml.  The NDRB advises the Applicant that certain serious offenses
warrant separation from the service in order to maintain good order and
discipline.  Violation of Article 112a is one such offense requiring
mandatory proceeding for separation regardless of time in service or grade.
 Violations of this policy normally result in an administrative separation
and an unfavorable characterization of discharge; however, commanders may
pursue a punitive discharge and possible confinement through a special or
general court-martial.  Additionally, the Commanding Officer noted in his
discharge memorandum that the Applicant “was fully aware of the Navy’s zero
tolerance policy regarding the use of illegal drugs and blatantly disobeyed
it.”  The command did not pursue a punitive discharge but instead opted for
an administrative discharge.  During his administrative discharge
processing, the Applicant waived his rights to consult with qualified
counsel, submit a written statement, and request an administrative
separation board.

For the Applicant’s edification, 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 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.  As noted in prior
correspondence to the Applicant, 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 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; 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 his DD Form 293, the Applicant provided no documentation for
review.  Should the Applicant desire a personal appearance hearing,
veterans organizations such as the American Legion are willing to provide
guidance to former service members in their efforts to obtain a discharge
upgrade (see Addendum, Additional Reviews).

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, Under Other Than Honorable, and the narrative reason for separation
shall remain Misconduct.

                  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 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 Board for Correction of Naval Records (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 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 NDRB 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 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