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NAVY | DRB | 2009_Navy | ND0901237
Original file (ND0901237.rtf) Auto-classification: Denied

ex-AO2, USN
Current Discharge and Applicant’s Request
Application Received: 20090407
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)        19940915 - 19940927     Active:            19940928 - 19990702
                                             19990713 - 2002102 4
                           2002102 5 - 20051023
                           20051024 - 20071209

Period of Service Under Review:
Date of Current Enlistment: 20071210     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090331      Highest Rank/Rate: AO 1
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 40
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.71

Awards and Decorations ( per DD 214):      Rifle EX Pistol (4) (2) (3) SSDR (2)EAWSBI

Periods of UA /C ONF :

NJP :
- 20081126 :       Art icle 112a ( Drugs - prescription drugs ) 3 specifications
         Awarded : Susp ended :

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:

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ 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 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. Wants recommendation for retention and reenlistment code changed.
2. Employment benefits.
3. Discharge inequitable because based on one isolated incident in 14.5 years of unbroken service.
4 . Medical information not considered .
Decision

Date: 20 0 9 1203             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 reflects that in a letter of 27 August 2008 the Commanding Officer (CO ), (USS JOHN STENNIS (CVN 74)), recommended the Applicant for retention after it was determined that he was a Family Advocacy Program Failure ; allegations of physical and emotional spouse abuse were substantiated against him and he was deemed not amenable to treatment. The CO indicated that the Applicant was acquitted of the charges in civilian court. The Applicant’s record of service also included nonjudicial punishment (NJP) for violation o f the Uniform Code of Military Justice (UCMJ): Article 112 ( Drug abuse – admi tted to ingesting another person’s Percocet ) . Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant elected rights to consult with a qualified counsel, submit a written statement, and requested an administrative board. An administrative separation board was convened and the members found by a vote of 3 to 0 that the preponderance of the evidence supported a basis for discharge due to drug abuse and by a unanimous vote the administrative board recommended separation with an Other Than Honorable characterization of service.

: (Nondecisional) The Applicant who is represented by counsel is seeking an upgrade to Honorable . The Applicant submitted a p ersonal st a tement wherein he requested that the Board recommend retention so that he can retire ; he also requested a change in his reen try code for reenlist ment purposes and an upgrade to Honorable because the job that he is seeking requires a General Under Honorable Conditions. 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 c hange 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. Additionally, t he 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.
Issue 3 (Decisional) ( ) . The Applicant contends his discharge is inequitable because it was based on one isolated incident in 14.5 years of unbroken service . The Applicant also contends he served his country proudly and had three prior Honorable discharges. The NDRB advises the Applicant certain serious offenses , even though isolated, warrant separation from the service in order to maintain proper order and discipline. As previously noted, v iolations of th e Navy’s drug policy r equire , at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Based on the evidence of record and statement of the Applicant, the NDRB determined there was sufficient evidence to separate him for use of a controlled substance and that his in-service performance was not sufficient to mitigate the misconduct which resulted in his discharge . Furthermore, per Navy regulations the B oard consider s those matters in the member’s record pertaining to this enlistment only in determining whether his characterization of service was equitable. Based on the Applicant’s misconduct in the current enlistment and lack of mitigating evidence the Board determined an upgrade is not warranted.

Issue 4 (Decisional) ( ) . The Applicant also contends that there was medical and legal information that was not considered in his case and his commanding officer did not allow him to discuss his medical condition (depression) at NJP . The Applicant also contends he w as not read his rights or allowed to address his concerns about the excessive amounts of Prozac that he was prescribed. Pursuant to the Manual of Courts-Martial, t he Applicant has a right to present matters in defense , extenuation, and mitigation orally, or in writing or both at NJP. However, the CO’s have discretion to decide what evidence and witnesses are relevant and reasonably available . The Applicant has not presented any documentary evidence to support any of his contentions . Furthermore, t he evidence of record does not contain a n y evidence of wrongdoing by the Applicant’s CO. The evidence of record indicates the Applicant admitted to wrongfully using a controlled substance to an investigator and to the members at his administrative board and that he was alert and oriented and responsible for his actions. Taking into consideration the evidence of record, the Applicant’s years of service, age, experience , offenses and his personal statement the Board has determined that an upgrade is not warrante d .

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.
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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