Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901392

Original file (ND0901392.rtf) Auto-classification: Denied

ex-HM3, USN

Current Discharge and Applicant’s Request

Application Received: 20090424

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)        19901102 - 20000 629     Active:          20000630 - 20041004 HON

Period of Service Under Review:
Date of Current Enlistment: 20041005     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090202      Highest Rank/Rate: HM2
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 50
Evaluation M arks:         Performance: 3.7 ( 6 )      Behavior: 3.0 ( 6 )        OTA: 3.48

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

Periods of UA /C ONF :

NJP :
- 20081202 :       Art icle 92 ( Failure to obey a lawful general regulation)
         Article 112a (Drug abuse, wrongful use of a controlled substance - cocaine)
         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:

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 2000 0630 UNTIL 200 41004 ”

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. Applicant claims he was unjustly discharge d from the Navy without a fair civil process.

Decision

Date : 20 0 9 1217 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 discharge 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. T he Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service inclu ded nonjudicial punishment ( ) for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation: by wrongfully engaging in an unduly familiar relationship with an e nsign) and Article 112a (D rug abuse, wrongfully us ing a controlled substance) . The Applicant also had a pre-service drug waiver for using marijuana two times prior to entering the Navy, and acknowledged complete understanding of the Navy’s Policy Concerning Illegal Use of Drugs on 2 November 1999. T he NDRB noted the applicant ’s less than truthful enlistment declaration regarding his drug usage prior to the Navy. Per medical records, the Applicant admitted to medical providers that he used marijuana, methamphetamines and cocaine between the age s of 11-17 years old . Based on the offense(s) committed, processing for administrative separation is mandatory. When notified for administrative s eparation p rocessing, the Applicant elected right s to consult with qualified counsel and to request an administrative board, but waived his right to submit a written statement for consideration by the separating authority.

An administrative separation board was convened on 30 December 2008 a board Naval Medical Center , San Diego to hear the Applicant’s case per MILPERSMAN 1910-146 - m isconduct due to d rug a buse , and MILPERSMAN 1910-142 - commission of a serious o ffense. The findings of t he administrative board found by a vote of two (2) to (1) that the preponderance of the evidence did not support a finding of misconduct under MILPERSMAN 1910-142. However, by a vote of three (3) to (0), the Board found that a preponderance of the evidence supported a finding of misconduct for drug abuse under MILPERSMAN 1910-146. By a vote of three (3) to (0), the Board recommended separation, and by a vote of three (3) to (0), the Board recommended the ch aracterization of separation as Under Other Than Honorable Conditions .

: (Decisional) ( ) . The Applicant contends he was unjustly discharge from the Navy without a fair civil process. The Applicant refers to the lack of evidence regarding the chain of custody on his urinalysis sample that resulted in a positive test for cocaine. After the administrative board made its determination , the Applicant’s counsel filed a letter of deficiency on behalf of the Applicant, in which one of the issues concerned the chain of custody regarding his positive urine sample. The NDRB opined that this letter of deficiency would have been reviewed prior to the Applicant’s separation by his commander – who could have opted to retain the Applicant , but did not do so . The Applicant failed to provide any additional evidence for consideration despite being encouraged to do so in initial correspondence from the NDRB . Thus the NDRB presumes the government acted appropriately in all matters dealing with the applicant’s issue. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and 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 Additio nal Reviews 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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NAVY | DRB | 2009_Navy | ND0901392

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