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NAVY | DRB | 2010_Navy | ND1000691

Original file (ND1000691.rtf) Auto-classification: Denied

ex-BM2, 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)        19860724 - 19860916     Active:          19860917 - 19890416
                                             19890417 - 19920408
                                             19920409 - 1995032 4
                                             1995032 5 - 19981021
                                             19981022 - 20011017

Period of Service Under Review:
Date of Current Enlistment: 20011018     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051027      Highest Rank/Rate: BM1
Length of Service : Y ear s M onth s 10 D a ys
Education Level:        AFQT: 31
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 4.5 ( 4 )        OTA: 4.25

Awards and Decorations ( per DD 214):      (2) (2) (3) (3) Flag LoC

Periods of UA /C ONF :

NJP:

- 20050802 :      Article ( Wrongful use of controlled substance, amphetamines , 8567 ng/ml , NAVDRUGLAB message 091501Z JUN 95 )
         Awarded: Suspended:

SCM:     SPCM:    C C :      Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

         “ 89 APR 17 ”
         “ 16 06 11 ”
         “ 02 08 23 ”
         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 890417 UNTIL 011017”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

A r equest to have the DD Form 214 updated to reflect four Navy and Marine Corps Achievement Medals and the Enlisted Surface Warfare Specialist insignia should be directed to the Board for Correction of Naval Records at 2 Navy Annex, Washington, DC 20370-5100 using DD Form 149.

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 11, effective 29 April 2005 until 1 June 2008,
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 he is unable to obtain work or receive unemployment benefits due to the drug charge.
2.       The Applicant contends he never knowingly abused drugs.
3 .       The Applicant contends his discharge is inequitable , because it was based on an isolated incident.
4 .       The Applicant contends he was not afforded proper legal assistance.
5.       The Applicant contends he was already judged guilty before the CO’s NJP.
6.       The Applicant contends that due to the Zero Tolerance Policy, he had absolutely no support from his chain of command.

Decision

Date: 20 1 1 0310             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 complete 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. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article (Wrongful use of controlled substance, amphetamines, 8567 ng/ml , NAVDRUGLAB message 091501Z JUN 0 5 ). Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

Issue 1: (Nondecisional) The Applicant contends he is unable to obtain work or receive unemployment benefits due to the drug charge. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities or unemployment benefits . Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends that he never knowingly abused drugs. A Navy Drug Lab message from 09 JUN 2005 reported that the Applicant tested positive for amphetamines. The Applicant had the opportunity to present his case before an Administrative Discharge Board, which ultimately recommended 3-0 that the preponderance of the evidence supported misconduct due to illegal drug use, by a vote of 3-0 that separation, and not retention, was warranted, and by a vote of 3-0 that the characterization of service should be Under Other Than Honorable Conditions. The Applicant’s commanding officer agreed with the recommendation, and the Applicant was properly separated with an UOTHC discharge. The Applicant did not provide any additional information to document that he did not use amphetamines. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on an isolated incident. D espite a service member’s prior record of service , certain serious offenses, even though isolated, warrant separation from the in order to maintain proper order and discipline. Violation of Article 112a is one such 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. The Applicant was found guilty of violation of Article 112a. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends he was not afforded proper legal assistance. The Applicant’s record and statements on his DD Form 293 clearly show that he exercised his right to consult with counsel. Additionally, his counsel was present at his Administrative Discharge Board. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends he was already judged guilty before the CO’s NJP. There is nothing in the Applicant’s service record, nor did he provide any documentation, to show that there was any prejudgment before his Captain’s Mast. The Applicant was found guilty of violation of UCMJ Article 112a based upon a preponderance of evidence as demonstrated by his positive test on a urinalysis. Relief denied.

Issue 6 : (Decisional) ( ) . The Applicant contends that due to the Zero Tolerance Policy, he had absolutely no support from his chain of command. The Applicant’s service record shows that on 8 AUG 2005 he was afforded all rights under the UCMJ. He was properly afforded the right to consult with qualified counsel, submit statements to the Administrative Board, and request an Administrative Board. The Applicant elected to exercise all of these rights, and he was ultimately properly and equitably discharged from the Navy. 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

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NAVY | DRB | 2010_Navy | ND1000691

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