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NAVY | DRB | 2010_Navy | ND1001444
Original file (ND1001444.rtf) Auto-classification: Denied

ex-HT1, USN
Current Discharge and Applicant’s Request
Application Received: 20100518
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)        19891018 - 19891101     Active:   19891102 - 19930613 HON
                                    19930614 - 19980602 HON
                  19980603 - 20021205 HON
        
Period of Service Under Review:
Date of Current Enlistment: 20021206     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20051005      Highest Rank/Rate: HT1
Length of Service : Y ear ( s ) M onth ( s ) 05 D a y ( s )
Education Level:        AFQT: 73
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 3.3 ( 3 )        OTA: 3.99
Awards and Decorations ( per DD 214): , GCA (2), (5), (6) , , , , CEA , LoC (3)

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :     Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ BATTLE “ E”AWARD (6), NATIONAL DEFENSE SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION , OVERSEAS SERVICE RIBBON, SEA SERVICE DEPLOYMENT RIBBON (5) , GOOD CONDUCT MEDAL (2) , NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, COMMAND EXCELLENCE AWARD, LoC ( 3 ) ”

         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 891102 UNTIL 021205 ”
        
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 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. Nondecisional issues: The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment or Department of Veterans Affairs (VA) educational benefits.
2. Decisional issues: The Applicant seeks relief through an upgrade of characterization of his service to Honorable conditions as a matter of: (1) (Equity) the Applicant contends his professional performance of duties and career accomplishments were not given due credit by the Separation Authority , leading to his involuntary separation; and (2) (Equity) the Applicant contends that his misconduct was a n isolated incident that does not warrant separation from active duty after nearly 16 years of service.

Decision

Date: 20 1 1 0818            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 NDRB 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 identified two decisional issues to the NDRB. Additionally, t he NDRB completed a thorough review of the circumstances leading to discharge, and the discharge process, to ensure discharge met the pertinent standards of both equity and propriety.

The Applicant’s service record included no NAVPERS 1070/613 (Page 13) retention-counseling warnings during his current enlistment period of service under review and no or judicial punishments during his current enlistment for any s o f the Uniform Code of Military Justice (UCMJ) . However, the Applicant’s service record does document a positive urinalysis sample dated 29 June 2005. The Applicant’s official service record reflects signed documents attesting to fully understanding the US Navy Drug and Alcohol Abuse Policy . The Naval Drug Lab testing indicated the presence of c ocaine in the Applicant ’ s urine sample (345 ng/ml). The Naval Drug Lab goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released.

As such, the Applicant’s violation of Article 112 (a) (Wrongful use, possession, etc of a controlled substance) of the UCMJ required mandatory processing for separation in accordance with the Navy’s Zero Tolerance Drug Policy. The NDRB reviewed the Applicant’s administrative separation package: when notified of administrative separation processing using the notification procedure, the Applicant elected to waive his right s to consult with a qualified legal counsel, to submit written matters to the Separation Authority, and to request an administrative board hearing be held. The Separation Authority reviewed the evidence of record and determined that a preponderance of the evidence supported the basis for separation: Misconduct – Drug Abuse per paragraph 1910-146 of the Navy Military Personnel Manual (MILPERSMAN). As such, t he Separation Authority directed the Applicant be discharged from the Naval Service and that his current period of enlistment reflect an Under Other Than Honorable Conditions characterizati on of his service with a re-enlistment code of RE-4 (not recommended for reenlistment) .

The Applicant provided numerous letters o f recommendation and statements of his character for the NDRB’s consideration.

(Nondecisional Issues ) - The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate reenlistment or VA educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of seeking to reenlist. As such, this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or

Veterans Affairs benefits. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. Additionally, t he NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the armed forces, and is not authorized to change a reentry code. The Applicant should petition the Board for Correction of Naval Records (BCNR) using DD Form 149. The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

(Decisional Issues ) ( Propriety/ ) . The Applicant seeks relief through an upgrade of characterization of his service to Honorable conditions as a matter of: (1) (Equity) the Applicant contends his professional performance of duties and career accomplishments were not given due credit by the Separation Authority , leading to his involuntary separation; and (2) (Equity) the Applicant contends that his misconduct was a n isolated incident that does not warrant separation from active duty after nearly 16 years of service. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut that presumption, to include evidence submitted by the Applicant. The Applicant submitted no additional evidence to rebut that presumption. The Applicant did not elect to defend himself at an administrative discharge board ; as such, the Separation Authority determined that a preponderance of the evidence presented supported the basis for separation: Misconduct – Drug Abuse per paragraph 1910-146 of the MILPERSMAN. The Applicant was a cc orded all of his rights and was presented an opportunity to address a board of his peers to present his case for retention or characterization of service .

The Applicant contends his discharge be upgraded based on his record of service, which was honorable apart from an isolated incident of misconduct. The NDRB commends the Applicant for completing his first three enlistment periods with an Honorable characterization of service , but each period of enlistment is an independent obligation and characterization of service is determined for that specific period of time . Moreover, d espite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline - violation of Article 112(a) meets this standard. As a Petty Officer First Class, t he Applicant was fully aware there is a zero - tolerance policy for drug abuse , and he acknowledged the consequences of violating it. The record clearly documents willful misconduct and demonstrated that he was unfit for further service. 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 honorable conditions. A n Under Other Than Honorable Conditions characterization of service is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. Although the Applicant completed three honorable periods of enlistment, his current enlistment period documents a knowing and willful violation of Article 112(a). Violation of Article 112(a) is a serious offense, punishable by punitive discharge and confinement if adjudicated by a special or general court-martial. In the Applicant’s case, the C ommand did not pursue a punitive discharge , but instead opted for the more lenient administrative separation process. The Separation Authority ultimately directed a characterization of service of Under Other Than Honorable Conditions , which was warranted and was consistent with the service norms for violation of Article 112(a). 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 grade and length of service, and falls short of what is required for an upgrade in the characterization of service. The NDRB found the characterization of the Applicant ’ s discharge was proper, was equitable, and was consistent with the characterization of discharge given others in similar circumstances.

 Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the NDRB determined that 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 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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