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NAVY | DRB | 2009_Navy | ND0901285
Original file (ND0901285.rtf) Auto-classification: Denied

ex-MMFR, USN
Current Discharge and Applicant’s Request
Application Received: 20090413
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)        20010220 - 20010814     Active:  

Period of Service Under Review:
Date of Enlistment: 20010815     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060601      Highest Rank/Rate: MM3
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 91
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of C ONF : 20060425 – 20060519 (24 days)

NJP :

S CM :
- 20060 425 :       Art icle 112a ( Drug abuse, wrongful use of a controlled substance: 3 spec ifications)      
         Spec 1: Adderall
         Spec 2: Cocaine
         Spec 3: Marijuana
          Sentence :

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 :


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

Applicant’s Issues

 1. Isolated incident .
2. U ndi agnosed psychological condition.
3. Now an “ up standing member of society” and studying mechanical engineering.

Decision

Date : 20 0 9 0706    Location: Washington D.C .       R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (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 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 reflects one summary court-martial for violation of the Uniformed Code of Military Justice: Article 112a (Wrongful use of a controlle d substance: 3 specifications: adderall, cocaine -237 ng/ml (cutoff is 100 ng/ml), and marijuana). Based on the offenses committed, processing for administrative separation is mandatory. When notified for Administrative Separation Processing, the Applicant waived rights to consult with qualified counsel, submit a written statement, and request an Administrative Board.

: (Decisional) ( ) . The Applicant contends his “ discharge was inequitable because it was based on one isolated incident in 58 months of service with no other adverse action.” Despite a Sailor’s prior record of se rvice, certain serious offenses, even though isolate d, warrant separation from the n aval service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of time in service or grade. An Under Other Than Honorable C onditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.
The Applicant’s use of three different controlled substances is considered a serious negative aspect of the member’s conduct.

: (Decisional) ( ) . The Applicant contends “he acted out due to undiagnosed psychological condition s, ” but is n ow receiving counseling and treatment for depression and adult attention deficit disorder (ADD). The Board applauds the Applicant’s in his seeking counseling and treatment for depression and ADD. However, i f a service member has a psychological condition, either undiagnosed or diagnosed, it is still unlawful to use a controlled substance . The Applicant was found guilty of using three di fferent controlled substances: a dderall, cocaine and m arijuana . At no time in the service, especially in the nuclear field, is it acceptable to be under the influence of drugs, unless specifically prescribed by a certified doctor for a specific ailment. In the Board’s opinion, t he Applicant was responsible for his actions and chose to violate the Navy’s “zero tolerance” drug policy.

Issue 3 : (Decisional) ( ) . The Applicant contends since being discharged, he is an upstanding member of society and is studying mechanical engineering with a 3.75 grade point average. Besides the Applicant ’ s statement on the DD Form 293, 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. On page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant i s notified to submit evidence “which substantiate or relate 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 . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

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 MISCONDUCT (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 .

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 .


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 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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