Search Decisions

Decision Text

NAVY | DRB | 2010_Navy | ND1000685
Original file (ND1000685.rtf) Auto-classification: Denied

ex-CSSA, USN
Current Discharge and Applicant’s Request
Application Received: 20100105
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)        20060412 - 20061107     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20061108     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090204      Highest Rank/Rate: CS3
Length of Service : Y ear s M onth s 27 D a ys
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.5 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 3.20

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP:

- 20080828 :      Article ( Wrongful use of controlled substance, marijuana )
         Awarded: NFIR Suspended: NFIR

SCM:     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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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. The Applicant contends that he never smoke d marijuana, but that it was either second - hand smoke or the hemp seed oil that his wife was cooking with.

Decision

Date: 20 1 1 0303             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. T he Board c omplete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. Based on the Article 112a violation, processing for administ rative separation is mandatory. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applica nt contends that he never smoked marijuana, but that it was either second - hand smoke or the hemp seed oil that his wife was cooking with. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided an article from the National Organization for the Reform of Marijuana Laws website concerning hemp seed oil. Unfortunately, this does not substantively document that the Applicant tested positive for THC because of his alleged ingestion of hemp seed oil. In the Applicant’s statement, he also mentions the possibility of second-hand smoke, which has been proven to not be a reason to test positive for the Navy’s test for THC. T he Board found no compelling evidence that the Applicant was not responsible for his actions and should not be held accountable. 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 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

Similar Decisions

  • NAVY | BCNR | CY2005 | 07685-05

    Original file (07685-05.rtf) Auto-classification: Denied

    A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 9 May 2006. (13) to investigate the possibility of a positive urine drug test as a result of daily ingestion of various amounts of these “new’ t preparations, with total daily doses of THC ranging from 0.09 to 0.6 mg (equivalent to 45-300 g of hulled hemp seeds containing 2 /Lg/g THC or 19—120 mL of hemp-seed oil at 5 mg/L THC) in the form of blends of hemp- seed...

  • ARMY | BCMR | CY2004 | 2004100659C070208

    Original file (2004100659C070208.doc) Auto-classification: Denied

    The applicant requests, in effect, the following corrections: removal of a general officer memorandum of reprimand (GOMOR), administrative separation board (ASB) proceedings and promotion flagging orders from his official military personnel file (OMPF); a change to the narrative reason for his discharge; promotion to lieutenant colonel with a date of rank of 15 August 2000 and back pay for 20 years; and issue of a Twenty-Year Letter, dated on or about 5 March 1999. The applicant states, in...

  • ARMY | DRB | CY2006 | AR20060016278

    Original file (AR20060016278.txt) Auto-classification: Denied

    The applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf. On 1 December 2005, the separation authority directed that the applicant be discharged with a characterization of service of general, under honorable conditions. Certification Signature and Date Approval Authority: MARK E. COLLINS Colonel, U.S. Army President, Army Discharge Review Board Official: CHRISTINE U. MARTINSON DATE: 27 December...

  • NAVY | BCNR | CY2001 | 06158-01

    Original file (06158-01.doc) Auto-classification: Approved

    g. A Navy pharmacologist submitted a report to the ADB in which she stated that both marijuana and hemp will produce the metabolite THC. The majority notes that the DAA.R reporting the accession urinalysis was apparently never acted upon by anyone and it was not considered in the discharge processing. The foregoing report of the Board is submitted for your review and action.

  • ARMY | BCMR | CY2005 | 20050010886C070206

    Original file (20050010886C070206.doc) Auto-classification: Denied

    The applicant requests, in effect, that the Record of Nonjudicial Punishment (DA Form 2627), dated 28 February 2003, be set aside, with all rights, privileges and property restored; that it be removed from his Official Military Personnel File (OMPF); that the Officer Evaluation Report (OER), dated 29 November 2002, be removed from his OMPF; that his administrative separation be reversed and his records corrected to reflect that he was honorably released from active duty (REFRAD) on 12...

  • ARMY | BCMR | CY2004 | 04106846C070208

    Original file (04106846C070208.doc) Auto-classification: Denied

    She notes that the UCMJ action states that she violated Article 112a, wrongful use of marijuana, a schedule I controlled substance, when her letter of reprimand and polygraph test results clearly show that she did not use a controlled substance, but rather, exercised poor judgment by using a dietary supplement, hemp seed. The applicant also states, in effect, that if she truly violated Article 112a, under the “zero tolerance” rule her UCMJ action would not have been filed in her restricted...

  • NAVY | DRB | 2004_Navy | ND04-00997

    Original file (ND04-00997.rtf) Auto-classification: Denied

    ND04-00997 Applicant’s Request The application for discharge review was received on 20040603. * (see medical issues documents). It was up until during the time of the cruise (U.S.S.

  • ARMY | BCMR | CY2003 | 2003084908C070212

    Original file (2003084908C070212.rtf) Auto-classification: Approved

    The applicant requests reconsideration of previous application to correct his military records by backdating his date of rank (DOR) for promotion to the rank of chief warrant officer three (CW3). After hearing the testimony and reviewing the evidence presented, the board of officers found the applicant innocent of the allegation that he had abused the illegal drug – marijuana, that his unknowing ingestion was from an over-the-counter product called Hemp Liquid Gold. Army Regulation 600-85,...

  • NAVY | DRB | 2001_Navy | ND01-01057

    Original file (ND01-01057.rtf) Auto-classification: Denied

    010313: An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge general (under honorable conditions). In this case, given the excellent service history, the plausible explanation for THC, and lack of evidence of drug abuse, I disagree with the Administration Separation Board's Findings.010423: CNPC directed...

  • NAVY | DRB | 2006_Navy | ND0600884

    Original file (ND0600884.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Applicant’s Issues: Representative: DISABLED AMERICAN VETERANS1. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable. Member recommended for OTH discharge.19930706*: Commanding Officer recommended discharge under...