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NAVY | DRB | 2009_Navy | ND0900973
Original file (ND0900973.rtf) Auto-classification: Denied

ex-ABHAN, USN
Current Discharge and Applicant’s Request
Application Received: 20090313
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)        20030924 - 20040509     Active:  

Period of Service Under Review:
Date of Enlistment: 20040510     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081202      Highest Rank/Rate: ABH3
Length of Service : Y ear ( s ) M onth ( s ) 23 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 3.6 ( 5 )      Behavior: 3.0 ( 5 )        OTA: 3.45

Awards and Decorations ( per DD 214):      (2)

Periods of UA /C ONF : NFIR
NJP :
- 20070405 :       Article 86 (Absent without leave)
         Awarded : Susp ended:

- 20080919 :       Art icle 112a ( Wrongful possession of a controlled substance )
         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. His urinalysis was negative; he had no prior drug convictions and was not aware of the drugs in his locker .
2. H e was a hard worker with good evaluations .
 3 . His case was not thoroughly investigated.

Decision

Date: 20 0 9 0820             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall (DRUG ABUSE).
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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included nonjudicial punishments (NJPs) for o f the Uniform Code of Military Justice (UCMJ) , Article 86 ( Unauthorized absence) and Article 112 a (Wrongful possession of marijuana) . Based on the drug offense committed, processing for administrative separation was mandatory. When notified of a dministrative s eparation p rocessing, the Applicant waived right to consult with qualified counsel, submit a written statement, and request an a dministrative discharge b oard.

: (Decisional) ( ) . In seeking an upgrade to General (Under Honorable Conditions), the Applicant contends: 1) his urinalysis test was negative, 2) he had no prior drug convictions , 3) he had no kno wledge of the foil or its cont ents that was found in his locker , 4) he was a hardworking dedicated Sailor with good evaluations , 5) he was recently promoted to petty officer, and 6 ) was wrongfully discharged . There is sufficient evidence in the Applicant’s record to support his contention s that he did not have any drug convictions prior to entering the military and that he was considered as one of the “top performers in Deck Division. ” However, per the Commanding Officer’s (USS NIMITZ (CVN 68)) letter of 14 October 2008, the Applicant was found to be in possession of marijuana that was found onboard the ship , in a sma ll area of the Applicant’s rack during a health and comfort inspection . D uring his NJP proceedings , the Applicant admitted the marijuana was found in his rack, but stated that someone put it there . In response to the Applicant’s contention that his urinalysis test was negative, a positive urinalysis reflecting drug abuse is not required when there is sufficient evidence that the Applicant was illegally in possession of a controlled substance. After reviewing the evidence of record and statement of the Applicant , the Board determined there was sufficient evidence to support the basis for separation due to misconduct ( possession of marijuana onboard a naval vessel) and his in - service performance was not sufficient to mitigate the misconduct .

Issue 3 : (Decisional) ( ) . The Applicant also contends his case was not properly investigated and he honorably served his confinement time. Navy regulations allow commanding officer’s discretion in determining whether additional evidence or an investigation is required in any given case prior to deciding on the disposition of it . The Applicant was allowed to submit a voluntary statement to the command investigator on 28 August 2008 regarding the drugs found in his locker and he was also given and opportunity to be heard at NJP and was found guilty as discussed supra – as the Commanding Officer found his denials “unconvincing. ” After reviewing the evidence of record , t he NDRB determined there was sufficient evidence to proceed with NJP and ultimately administrative separation and that no further investigation was needed. Furthermore, upon being notified of administrative separation processing for drug use as noted in the Administrative Separation Processing Notice of 22 September 2008 , the Applicant expressly waived his right to an administrative board , thereby forfeiting the opportunity to present additional e vidence on his behalf. In regard to the issue of c onfinement, there is no evidence in the record nor provided by the Applicant to support the contention that “I honorably served my confinement.” However, the record does reflect th at th e Applicant was awarded 60 days of restriction as a part of his punishment at NJP for possession of drugs as discussed supra . This disciplinary action was separate and apart from administrative separation which is not considered as punitive in nature. Based on a review of the record and statement presented by the Applicant, the NDRB determined that the punishment awarded was proper and in accordance with the Manual for Courts-Martial United States (2008 edition).

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 .

 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 .




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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