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NAVY | DRB | 2009_Navy | ND0901471
Original file (ND0901471.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20090507
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19990729 - 20000710     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000711     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040616      Highest Rank/Rate: MM3
Length of Service : Y ear ( s ) M onth ( s ) 06 D a y ( s )
Education Level:        AFQT: 37
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 1.3 ( 3 )        OTA: 2.55
Awards and Decorations ( per DD 214):      (2) (2)

Periods of UA /C ONF :

NJP :
- 20010620 :       Article 111 (Drunken or reckless operation of vehicle)
         Awarded : Susp ended:

- 20021004 :       Article 92 (Failure to obey lawful general order)
         Awarded : Susp ended:

- 20040116 :       Article 112a (Wrongful use of a controlled substance , cocaine )
         Article 134 (Adultery)
         Awarded : Susp ended:

S CM : SPCM: C C :

Retention Warning Counseling :
- 20010622 :       For violation of UCMJ Article 111 (Drunken or reckless operation of vehicle)

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 :   


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

Applicant’s Issues

 1. Appeal of his nonjudicial punishment.
Decision

Date: 20 10 0128             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 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. The Applicant’s record of service included one NAV PERS 1070/613 (Page 13) warning and three nonjudicial punishments (NJPs) for violations o f the Uniform Code of Military Jus tice (UCMJ): Article 92 ( Failure to obey lawful general order), Article 111 ( Drunken or reckless operation of a vehicle), Article 112a ( Wrongful use of a controlled substance, cocaine ) , and Article 134 (Adultery, wrongfully have sexual intercourse with a woman not his wife). The Applicant did not require a pre-service drug waiver prior to entering the Navy. Based on the Article 112a violation, the Applicant’s processing for administ rative separation wa s mandatory. The NDRB did not have access to the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to c onsult with a qualified counsel and submit a written statement.

Issue 1 : (Decisional) ( ) . Based on his letter of 4 March 2004 ( appeal of NJP punishment of 16 January 2004 ) , the Applicant contends that he has never taken drugs, and provided documentation of a civilian hair analysis, taken one month after his positive urinalysis, which was negative for cocaine. The Applicant’s commanding officer (CO) , in his endorsem ent of the Applicant’s appeal letter ( dated 31 March 2004 ), noted that he had complete confidence in the Navy’s urinalysis program and he had no reason to believe the Applicant’s own private hair analysis results because 1) the Applicant did not provide any chain of custody paperwork proving that the hair sample was his; 2) the report did not mention the length of the hair, where it was taken from, or the testing procedure; 3) the Applicant’s exposure to sweat and chemicals that soak into the hair while he is working in the engineering spaces; and 4) the fact the Applicant had nearly a month between tests in which he washed his hair several times and received at least one haircut. The CO also noted in his letter that the Applicant had received three NJPs to include an offense of adultery. The NDRB advises the App licant certain serious offenses warrant separation from the service to maintain good order and disc ipline. Violation of Article 112a , which meets this standard, 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. Furthermore, the Applicant ’s sexual encounter with a girl he had met at a local bar (v iolation of Article 134 ) , as well as his violations of Article s 92, 111 and 112a could have resulted in punishment substantially more harsh than the discharge the Applicant received. Relief denied.

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 his 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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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 Disabled American 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 their 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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