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NAVY | DRB | 2009_Navy | ND0902622
Original file (ND0902622.rtf) Auto-classification: Denied
ex-BMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090928
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)        20050120 - 20051102     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20051103     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090319      Highest Rank/Rate: BM3
Length of Service : Y ear ( s ) M onth ( s ) 17 D a y ( s )
Education Level:        AFQT: 42
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 4.0 ( 1 )        OTA: 4.00

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20060405 :       Article (False official statement on 29 Mar 2006 )
         Awarded : Susp ended:
- 20090115 :       Article 112a (Wrongful use of a controlled substance , oxycodone 197 ng/ml, oxymorph o ne 460 ng/ml )
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20060405 :       For violation of Ar ticle 107 (False official statement).

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law
A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 2 June 2008 until 9 November 2009, 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 seeks upgrade to obtain VA benefits and improve employment opportunities.
2 .       Applicant c laims his innocence of misconduct a s evidenced by his spotless record of service.
3.       Applicant contends his discharge was improper as he was not allowed to disprove his misconduct.
4.       Applicant contends he requested an appeal of the charge against him but was denied .

Decision

Date: 20 10 1029             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 o f 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 identif ied three decisional issues for the Board’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included NAV PERS 1070/613 ( Page 13) warning for making a false official statement and for o f the Uniform Code of Military Justice (UCMJ): Article 107 ( False official statement on 29 Mar 06 , specifics NFIR ) and Article 112a ( Wrongful use, possession, etc of controlled substance, oxycodone 197ng/ml and oxymorphone 460 ng/ml, as confirmed by NAVDRUGLAB msg 051304Z Jan 09 ) . The Applicant also had pre-service waivers for accessory to theft and possession of marijuana, and for us e of marijuana prior to entering the Navy. Based on the Article 112a violation, processing for administra tive separation is mandatory. When notified of pending administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.
: (Nondecisional) The Applicant seeks an upgrade to obtain VA benefits and improve employment opportunities. The U.S. Department of Veterans Affairs 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. Additionally, t he 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.
Issues 2-3: (Decisional) ( ) . The Applicant claims his innocence of misconduct as evidenced by his spotless record of service. Additionally, the Applicant contends his discharge was improper as he was not allowed to disprove his misconduct. In reviewing discharges, the Board presumes regularity in the conduct of government affairs unless there is substantial , credible evidence to rebut the presumption . The Applicant did not provide any evidence to the Board that would verify or substantiate his claim of innocence and wrongful separation from the service.

Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain good order and discipline ; violation of Article 112a meets this standard. The Applicant signed the US N Drug Policy on 11 Jan, 12 Jan, and 19 Jan 2005. He was fully aware there is a zero - tolerance policy for drug abuse , and he acknowledged the consequences. The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions. When a service has been honest and faithful, it is appropriate to characterize that service under H onorable conditions. An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a Sailor . The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors , regardless of his grade and length of service , and falls short of what is required for an upgrade in t he characterization of service.

Moreover, when referred to Captain’s Mast on 15 Jan 2009 for violation of UCMJ Article 112a, there was no evidence that the Applicant made any attempt to claim his innocence or defend himself against the charge of illegal use of marijuana . The record reflects that the Applicant chose not to demand trial by court-martial, a process which demands much more stringent rules of evidence to achieve a conviction, but instead opted to accept commanding officer ’s NJP . Additionally, he chose not to submit an appeal of his punishment after being found guilty at NJP. Lastly, when the command notified him on 6 Mar 2009 of the intent to process him for administrative separation , the Applicant waived his rights to consult with a qualified counsel, submit a written statement of rebuttal, and request an administrative separation board or general court-martial convening authority review . These rights are specifically afforded to all service members (U.S. Navy Military Personnel Manual) to ensure the relevant facts and circumstances surrounding a member’s separation are made known to the separation authority and to ensure the service member’s right to self- defen se a gainst any allegation is maintained . After consideration of the available evidence, to include the Applicant’s statements and service record entries, the Board determined the issues to be without merit.

4: (Decisional) ( ) . The Applicant contends he requested an appeal of the charge against him but was denied. The Applicant did not provide any evidence to the Board which would verify or substantiate his claim of improper and wrongful separation fro m the service. Since the NDRB is not an investigative body, allegations of improper conduct by the command should be made to the Naval Inspector General's Office. As such, the Board determined this issue was without merit and does not provide a basis for which relief could be granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and administrative 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 discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, 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 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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