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NAVY | DRB | 2009_Navy | ND0901807
Original file (ND0901807.rtf) Auto-classification: Denied

ex-CTASA, USN
Current Discharge and Applicant’s Request
Application Received: 20090616
Characterization of Service Received:
Narrative Reason for Discharge: , DRUG ABUSE
Authority for Discharge: MILPERSMAN []

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       CONVENIENCE OF MILITARY /SECRETARIAL AUTHORITY

Summary of Service

 Prior Service:
Inactive:         US N R (DEP)        20000621 - 20000628     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20000629     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030807      Highest Rank/Rate: CTASN
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 2.60 ( 5 )     Behavior: 1.60 (5 )       OTA: 2.19
Awards and Decorations ( per DD 214):      (2)

Periods of UA /C ONF :

NJP :
- 20010712 :      Article (Absent from appointed place of duty 0800-1025, 20010629)
         Awarded: Suspended:
- 20020809 :      Article (UA)
         Awarded: Suspended:
- 20030207 :      Article (Violated a lawful general order by having a tongue ring in tongue while in uniform)
         Article 134 (Disorderly conduct)
          Awarded: NFIR Suspended:

S CM : SPCM: C C :

Retention Warning Counseling :
- 20020919 :       For failure to go to appointed place of duty.
 - 200302 18 :       For violation of a lawful general order by having a tongue ring in your tongue while in uniform and disorderly conduc t.
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. Had disclosed marijuana use to military entrance doctors upon entrance into the Navy.
2. Separation authority did not attempt to develop tangible evidence that her enlistment was fraudulent.
3. Command acted unfairly and misused their command authority.
4. Her performance, while not always perfect, was improving.
5. Improper basis for separation for misconduct; she had no nonjudicial punishments, all were NAVPERS 1070/613 warnings.

Decision

Date: 20 10 0422    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 two NAVPERS 1070/613 (Page 13) warnings, and three nonjudicial punishments (NJPs) for violations o f the Uniform Code of Mili tary Justice (UCMJ): Article 86 ( Absence without leave, 2 specifications: from appointed place of duty for 2.5 hours and failure to go to appointed place of duty), Article 92 ( Violate a lawful general order: having a tongue ring in her tongue while in uniform), and Article 134 (Disorderly conduct). In her Security Clearance Application Standard Form 86 signed on 16 June 2003, the Applicant admitted to using marijuana 2,000 times prior to enlisting in the Navy. Based on the offenses committed by the Applicant and her admission of using marijuana 2,000 times , her command administratively processed her for separation. When notified of administrative separation processing using the notification procedure, the Applicant waived her rights to consult with a qualifi ed counsel and request a General Court-Martial Convening Authority (GCMA) review. She elected to submit a written statement, but failed to do so as noted by her commanding officer.
Issue s 1 through 3 : (D ecisional) ( ) . The Applicant contends she had disclosed her pre-service marijuana use to the military entrance medical doctor s upon her entrance in the Navy, that the separation authority did not attempt to develop tangible evidence to show her enlistment was fraudulent or could be characterized as such, and that her command acted unfairly and misused their command authority and discretion when deciding to pursue her separation from the Navy. In the Applicant’s argument regarding Issue 2, she stated information from the Manual of Court Martial regarding unlawful enlistment and per the Naval Military Personnel Manual (MILPERSMAN) 1910-704, the separation authority is a special court-martial convening authority (SPCMCA) and had the responsibility to provide for a fair evaluation of the charges used against her, then to make a decision based on the full preponderance of all available evidence.

The Applicant was asked to renew her security clearance , and in her statement to the NDRB, admitted to making a mistake in not properly re-reporting her pre-service marijuana use. The Applicant stated she was not going to reenlist and didn’t see a need t o renew her security clearance, but did fill out a Standard Form 86. When questioned about why she didn’t indicate her pre-service drug use, the Applicant stated she became angry and then frustrated and radically overstated her marijuana use as 2,000 times and not three times as noted on her Report of Med ical History dated 21 June 2000 . For the Applicant’s information, she was separated for fraudulent enlistment, not unlawful enlistment, and her commanding officer is the SPCMCA; and admission of drug use and the number of times used is sufficient for the SPCMCA to make a decision regarding whether or not a fraudulent entry has occurred and he does not have to prov e the number of times a member had used a controlled substance. If the Applicant knew she was exaggerating the number of times she had used marijuana, it was her responsibility to inform the command at the time of the incident. Since the Applicant did not submit a written statement or request an administrative board, she accepted the discharge recommended in the letter of notification. Based on the evidence of record, the NDRB determined the Applicant met the requirement for separation by reason of defective enlistments and inductions – fraudulent entry into Naval service. Relief denied.

Issue 4-5 : (Decisional) ( ) . The Applicant contends her Naval standards were not always perfect, but she was making improvements and did her best to make the most out of a difficult working environment. She also contends she had no NJPs as all were Page 13 warnings. The Applicant provided one of her five evaluation report s. The evidence of record documents the Applicant had three NJPs and at least two Page 13 warnings. Her overall trait average during the period from December 2000 to August 2003 was 2.19, which is below the minimum for an Honorable discharge had she completed her enlistment. Evaluation c omments includ ed: “Her ability to produce quality work is overshadowed by her lack of maturity in maintaining a standard level of military bearing.” “Counseled extensively on her failure to comply with basic military requirements and regulations.” “Her disrespect towards supervisors and her unwillingness to accept change and guidance has created conflict within her work center.” “…occasional lack of maturity resulted in lapses of military bearing and courtesy, requiring excessive supervisor time to correct.” “Constantly requires specific direction and extensive supervision”
Furthermore, there is no evidence the Applicant’s command requested a waiver to retain her. For the Applicant’s information, a General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropr iety in the discharge action or inequity in the characterization of the Applicant’s service.

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 her 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
25 January 2004, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.

 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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