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NAVY | DRB | 2010_Navy | ND1000892
Original file (ND1000892.rtf) Auto-classification: Denied

ex-MM2, USN
Current Discharge and Applicant’s Request
Application Received: 20100217
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)        19990819 - 19991012     Active:            19991013 - 20020124
                                             20020125 - 20061126

Period of Service Under Review:
Date of Current Enlistment: 20061127     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080919      Highest Rank/Rate: MM1
Length of Service : Y ear M onth s 23 D a ys
Education Level:        AFQT: 57 /82
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 3.0 ( 1 )        OTA: 3.86

Awards and Decorations ( per DD 214):      (2) (2) ESWS

Periods of UA /C ONF :

NJP:

- 20080515 :      Article ( Wrongful use of controlled substance, marijuana)
         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:

         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT (DRUG ABUSE) ”

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

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. The Applicant contends his almost nine years of honorable service outweigh his misconduct.
2 . The Applicant contends that his self-referral was not taken into account and that he was processed like a member who did not turn themselves in.
3. The Applicant contends his discharge was improper, because he should have been notified using notification procedures for discharge.
4. The Applicant contends his discharge was improper, because he believed he turned himself in during medical treatment.
5. The Applicant contends that his urinalysis results were used improperly, because they were obtained to determine fitness of duty and therefore cannot be used in disciplinary proceedings.
6 . The Applicant contends that his administrative board was improper , because the senior member was in his chain of command.
7 . The Applicant contends he was not afforded the opportunity to go to treatment due to the fact that his administrative board was scheduled during the planned treatment.

Decision

Date: 20 1 1 0317             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 stan dards 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, marijuana). The Applicant a pre-service drug waiver for using marijuana less than ten times prior to entering the Navy. 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 a n administrative board . The administrative board voted unanimously to recommend separation with an Under Other Than Honorable Conditions characterization of service. The Applicant provided documentation that i ncluded a letter from the Applicant’s wife and character references from a master chief petty officer and a public works officer .

: (Decisional) ( ) . The Applicant contends his almost nine years of honorable service outweigh his misconduct. 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. Relief denied.
: (Decisional) ( ) . The Applicant contends that his self-referral was not taken into account and that he was processed like member s who did not turn themselves in. The Applicant was afforded the opportunity at his Administrative Board to present his case for a discharge other than OTH, to include presenting his previous service and noting that he turned himself in rather than being caught using illegal drugs. The Administrative Board recommended that the Applicant be separated with an OTH discharge. Relief denied.


: (Decisional) ( ) . The Applicant contends his discharge was improper, because he should have been notified using notification procedures for discharge. Per t he 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 , the Applicant was properly processed using administrative board procedures. None of the conditions in paragraph 3.a. (conditions where notification procedures are to be used) pertained to the Applicant . Specifically, he was not found to be drug dependent by proper medical authority, he was not being processed for fitness of duty, and he did not voluntarily disclose evidence of prior personal drug abuse during the course of treatment/rehabilitation. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends his discharge was improper, because he believed he turned himself in during medical treatment. The Applicant admitted to drug use to a medical officer shortly after he smoked marijuana during a night of drinking. He was not undergoing medical treatment at the time for his drug use. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends that his urinalysis results were used improperly, because they were obtained to determine fitness of duty and therefore cannot be used in disciplinary proceedings. The Applicant admitted to drug use to a medical officer who then referred him to the command DAPA. With this probable cause, the DAPA then asked for and obtained the Applicant’s consent to provide a urine sample, which subsequently tested positive for marijuana. Per paragraph 4.a. of Article 1910-146 , this urinalysis was properly used during disciplinary proceedings, as a basis for separation, and to give an OTH characterization. Relief denied.

Issue 6: (Decisional) ( ) . The Applicant contends that his administrative board was improper , because the senior member was in his chain of command. In his letter of 18 Aug 2008, Commanding Officer, Naval Nuclear Power Training Unit, Ballston Spa, noted that he was “confident that LCDR H_ did not know [Applicant] nor had prior knowledge of the facts submitted during the Administrative Board. Accordingly, LCDR H_ was a fair, impartial, and viable candidate to serve as the Senior Member.” The Applicant provided no documentation to rebut this assertion. Relief denied.

Issue 7: (Decisional) ( ) . The Applicant contends he was not afforded the opportunity to go to treatment due to the fact that his administrative board was scheduled during the planned treatment. In a letter from the Naval Health Clinic dated 12 May 2008, the command was informed of the dates of the Applicant’s treatment program. It also stated that if the Applicant was unable to attend, the command should reschedule the treatment. The Applicant provided no evidence , nor even mentioned, if he or his command attempted to reschedule the treatment. Even if there was no attempt to reschedule the treatment, this does not make the discharge improper or inequitable. 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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