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NAVY | DRB | 2009_Navy | ND0901007
Original file (ND0901007.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20090318
Characterization of Service Received:
Narrative Reason for Discharge: DRUG REHABILITATION FAILURE
Authority for Discharge: MILPERSMAN 1910-150

 Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20000209 - 20000215     Active:            19850430 - 19850807

Period of Service Under Review:
Date of Enlistment: 20000216     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010104      Highest Rank/Rate: AA
Length of Service : Y ear ( s ) M onth ( s ) 19 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 5.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 3.33

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :

- Date of NJP Unknown:   
Article 112a ( Use of a controlled substance ) [Extracted from Evaluation Report and Counseling Record dated 20001127.]    Awarded : NFIR Susp ended: NFIR

S CM :    SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ NAVMILPERSMAN 1910-150 ”

The NDRB will recommend to the C ommander, 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 Representat ion :    From Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 1 September 1998 until 21 August 2002, Article 1910-150, Separation by Reason of Drug Abuse Rehabilitation Failure.

 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. Seeking to join the Oklahoma National Guard.
2. R eleased from “rehab” two days early based on a hearsay accusation.
3 . Seeking p ost- service conduct consideration .

Decision

Date: 20 0 9 0903             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall DRUG REHABILITATION FAILURE .
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 non-judicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 112a (Illegal use of a controlled substance ). The NDRB did not have access to the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with qualified counsel and submit a written statement. However, p er the Applicant’s DD Form 214 , he was administratively processed for separation due to drug abuse rehabilitation failure and given a separation code of HPC indicating he waived his right to an administrative board .

: (Nondecisional) The Applicant is requesting a change in his narrative reason in order reenlist in the Army Reserves or Army National Guard as a truck driver. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces. Therefore, 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.
: (Decisional) ( ) . The Applicant is seeking a change in the narrative reason and contends that he was released from the Navy two days early due to a hearsay accusation that he drank a beer on a weekend pass. The Applicant also submitted a personal statement wherein he admitted to being released from the Navy for drug rehabilitation failure due to a “one time, one beer drink ” and a signed a privacy act release and constituent information form on 20 February 2009, indicating he was discharged from the Navy in 2001 for drug use . The evidence of record also contains a Report of Medical History, Standard Form 93 signed by the Applicant on 7 November 2000 which contains the following wording: “Been alcohol dependent by CAAC, used coca i n e, tested positive.” The presumption of regularity of governmental affairs was applied in the a bsence of an admin istrative discharg e package. The re is no documentary evidence in the available records nor provided by the Applicant to support his request for a change in the narrative reason. NDRB determined that based on the evidence of record and admissions of the Applicant , there was sufficient evidence to support a basis for discharge due to drug rehabilitation failure and that the statement provided by the Applicant w as not sufficient to overturn the presumption that the Applicant was properly di scharged for drug rehabilitation failure .

: (Decisional) ( ) . The Applicant also contends that since being discharged from the Navy he has been drug free, married, had a child, and has been supporting his family by working full time as a truck driver. The Applicant has provided character reference s and copy of his certificate of ordination as a minister for the Board’s consideration. 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); 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 submission 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.

The Board determined that the documentation provided by the Applicant was not sufficient to form a basis of relief. On page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate s or relate s directly to your issues in Item 6” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant’s DD Form 293 , the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct .

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 REHABILITATION FAILURE .

 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 and Automatic Upgrades .



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.

 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.

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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