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NAVY | DRB | 2009_Navy | ND0901545
Original file (ND0901545.rtf) Auto-classification: Denied

ex-ET2, USN
Current Discharge and Applicant’s Request
Application Received: 20090512
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)        20011117 - 20011210     Active:   20011211-20050211

Period of Service Under Review:
Date of Current Enlistment: 20050211     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 2009 0219      Highest Rank/Rate: ET1
Length of Service : Y ear ( s ) M onth ( s ) 9 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance:       ( NFIR   )      Behavior:       ( NFIR )        OTA: 3.8

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :
- 20081119 :       Article 112a (Drugs)
         Article 134 (incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug)
          Awarded : Susp ended :

S CM : 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 /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.        D enied a request for court-martial.
2.       Claims i rregularities in his administrative process and separation board.

Decision

Date : 20 0 9 0128         Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
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 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 for o f the Uniform Code of Mil itary Justice (UCMJ): Article 112a (Wrongful use, possession of a controlled substance , 1 specification), Article 134 (Incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug , 1 specification ), The Applicant also had a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the article 112a offense , processing for administrative separation wa s mandatory. When notified for administrative s eparation p rocessing, the Applicant exercised right s to consult with qualified coun sel, submit a written statement and re quest an administrative b oard. The administrative separation board voted 3-0 that the Applicant was guilty of the misconduct, voted 3-0 to separate and voted 3-0 for a discharge characterization of General (Under Honorable Conditions).

: (Decisional) ( ) . The Applicant contends he was denied his request for court-martial and was taken to NJP . There is no record of a request for trial by court-martial by the Applicant or that such a request was denied by his command . In certain situations involving ships at sea, the commanding officer has the power to take disciplinary matters to NJP or court-martial at his discretion. The NDRB presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption. Other than his own statement, the Applicant provides no document ed evidence to substantiate his claim or to overcome the presumption of regularity. Violation of Article 112a is a serious offense requiring mandatory processing for administrative separation regardless of grade or time in service. This 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. Considering the nature and seriousness of the misconduct, the NDRB opined that the Applicant’s command was unusually lenient in opting to purs ue administrative separation and granting a General (Under Honorable Conditions) discharge characterization.

: (Decisional) ( ) . The Applicant contends his discharge was improper because there were irregularities in his administrative separation process and board. He claims these irregularities were : urinalysis test documentation did not show the Applicant was over DoD cutoff requirements for any controlled substance, the chain of custody documents for specimens were incomplete, the witnesses against the Applicant did not appear before the administrative separation board for questioning, and the Applicant was not given an opportunity to exa mine the evidence against him. The Applicant’s couns el submitted a letter of deficiency including all of these irregularities following the Applicant’s admi nistrative separation board. A new board was requested based on these complaints and the request was subsequently denied. The NDRB determined that the irregularities submitted by the Applicant were given due consideration , and the administrative separation process was proper and equitable.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntr ies 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 until 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 from the 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 veteran's organizations, such as the American Legion and the Association of Service Disable Veterans, 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 Naval Discharge Review Board. 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 Board for Correction of Naval Records (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 subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense 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 Board for Correction of Naval Records can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life 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 certificate (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 previous 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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