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NAVY | DRB | 2009_Navy | ND0901125
Original file (ND0901125.rtf) Auto-classification: Denied

ex-SHSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090325
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19891122 - 19900826     Active:   19900827 – 19940828 HON

Period of Service Under Review:
Date of Current Enlistment: 19941227     Age at Enlistment:
Period of E nlistment : Years 13 MONTHS Extension
Date of Discharge: 19990723      Highest Rank/Rate: SH 2
Length of Service : Y ear ( s ) M onth ( s ) 27 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 3. 6 ( 5 )      Behavior: 3. 6 ( 5 )        OTA: 3. 48

Awards and Decorations ( per DD 214):     

Periods of UA : 0800-1630, 19990319 (8 hours and 30 minutes) ; 19990 2 22-19990 2 2 5 ( 3 DAYS) , 19990322-19990323 (2 DAYS Lost time per DD214)

NJP :

- 19990401 :       Article 112a (Wrongful use of a controlled substance), 2 specifications
          Article 86 (UA) , 3 specifications, T otal UA: 5 days, 8 hours and 30 minutes
         Awarded : Susp ended: Vacated 19990503

- 19990423 :       Article 112a ( Wrongful use of a controlled substance )
         Awarded: Susp ended:

- 19990628 :       Art icle 86 (UA 19990603-19990616, 13 DAYS)
         Awarded : Susp ended :

S CM :

SPCM:

C C :
- 19960829 :       Offense: Driving with suspended license, reckless driving, and leaving the scene of an accident
         Sentence : 3 yrs probation

Retention Warning Counseling : NFIR






Administrative Corrections to the Applicant’s DD 214

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

          “ 3630620 ”
“ GKK ”
         “ MISCONDUCT-DRUG ABUSE ”
        
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 /To Representat ion :            From /To Congress m ember :         

Oth er Documentation :   

Pertinent Regulation/Law

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until
26 March 2000, 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.        W as an o utstanding sailor at one point.
2.       Had depression and didn’t know how to ask for help.
3. Post-service treatment for dep ression, drug and alcohol abuse .
Decision

Date : 20 0 9 1015             Location: Washington D.C .        R epresentation :

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

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 ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( UA, 19990603-19990616, 13 days) , Article 112a ( Wrongful use of a controlled substance , cocaine and marijuana ; per NAVDRUGLAB message R092111ZMAR 99, the drug level in the Applicant’s system for cocaine was 219 ng/ml and for marijuana was 827 ng/ml --–the threshold level for a positive test is 100 ng/ml and 15 ng/ml , respectively), and Article 112a ( Wrongful use of a controlled substance , marijuana ) NAVDRUGLAB message R051721ZAPR 99, the level for the second offense was 615 ng/ml . The Applicant had a civilian conviction (CC) at the Hampton Circuit Court, Virginia for driving with a suspended license, reckless driving, and leaving the scene of an accident for which he was sentence d to probation for three years. The Applicant also had a pre-service drug waiver prior to entering the Navy , and acknowledged complete understanding of the Navy’s Policy Concerning Illegal Use of Drug s on 14 November 1989 . B ased on the Article 112a offenses committed, processing for administrative separation was mandatory. W hen processed for a dministrative s eparation, the Applicant waived his right to submit a written statement, but elected rights to consult with a qu alified counsel and request an a dmi nistrative discharge b oard. By a vote of 3 -0, the administrative discharge b oard found that the Applicant did commit misconduct based on drug abuse, recommended separation with an U nder O ther T han H onorable C onditions characterization, did not recommend suspending the separation, and did not recommend his transfer to the Individual Ready Reserve (IRR).
Issue 1 : (Decisional) ( ) . The Applicant contends he was an outstanding sailor until his first NJP. The NDRB advises the Applicant despit e a service member’s prior record of service certain serious offenses warrant sepa ration from the service to maintain good order and discipline. Violation of Article 112a is one such offense requiring, at a minim um, mandatory processing for administrative separation , which 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 but opted instead for an administrative discharge. As noted above, the Applicant violated Article 112a multiple times. The NDRB determined the awarded characterization of service was warranted.
Issue 2 : (Decisional) ( ) . The Applicant contends he had depression , which led to his misconduct, and he did not know how to ask for assistance while in the Navy . The Applicant’s medical record was not available at the time of this review and the Applicant failed to provide any documentation to support his diagnosis of depression while he was in the Navy. However, at the time the Applicant used illegal drugs, he was stationed at the National Naval Medical Center (NNMC) , Bethesda, Maryland, and had been a second class petty officer for almost three years. While at NNMC Bethesda, the Applicant had many resources available to him (e.g., medical health professionals, counselors, chaplains, Red Cross volunteers, etc.) if he needed assistance or treatment for depression or drug addiction, b ut he failed to use any of them, including his chain of command. Furthermore, the Applicant’s drug use was discovered by urinalysis testing and not by self-referral. The NDRB opined that, a s an experienced second class petty officer, the Applicant should have known what counseling resources were available t o him, how to access them, and to seek help through his chain of command. While the Applicant may feel his depression was a factor that contributed to his actions , the evidence of record does not demonstrate that he was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Issue 3: (Decisional) ( ) . The Applicant contends that he has been in a program for depression and drug / alcohol abuse and is about to complete it. Besides the Applicant's statement on the DD Form 293 and a letter and certificate from the Department of Veterans Affairs (VA) for completion on his rehab program , he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. O n page 4, Item 8, in the instructions for completion of DD Form 293, applicants are instructed to submit evidence "which substa ntiate 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 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 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 .




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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