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NAVY | DRB | 2011_Navy | ND1100093
Original file (ND1100093.rtf) Auto-classification: Denied

ex-ETSN, USN
Current Discharge and Applicant’s Request
Application Received: 20101014
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)        20001229 - 20010220     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 20010221     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20041018      Highest Rank/Rate: ET3
Length of Service : Y ear s M onth s 28 D a ys
Education Level:        AFQT: 70
Evaluation M arks:         Performance: 4.3 ( 4 )      Behavior: 4.0 ( 4 )        OTA: 3.86

Awards and Decorations ( per DD 214):      Pistol MM NDSM GCM

Periods of UA /C ONF :

NJP: 1

- 20040407 :      Article 112a (Wrongful use of controlled substance)
         Awarded: RIR FOP RESTR Suspended:

SCM: NONE        SPCM:    C C :      Retention Warning Counseling: NFIR

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), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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 is u nable to take advantage of the services offered to veterans due to his discharge.
 2 .       The Applicant contends his d ischarge is inequitable , because it was based on an isolated incident in 28 months of service with no other adverse action.
3.       The Applicant contends his d ischarge was improper , because no other tests were conducted to disprove the one that had positive results .

Decision

Date: 20 1 1 1101             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 the Applicant’s di scharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service did include one non-judicial punishment (NJP) for violation of the UCMJ : Article ( Wrongful use of controlled substance , ) . The Applicant did not require a pre-service drug waiver to enter the Navy. 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 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 .

: (Non - decisional) The Applicant contends he is u nable to take advantage of the services offered to veterans due to his discharge. T he Department of Veterans Affairs ( VA ) determines eligibility for post-service benefits, not the N DRB. There is no requirement, or law, that grants re-characterization solel y on the issue of obtaining v eterans benefits , and this issue does not serve to provide a foundation upon which the Board can grant relief. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing a former service member’s eligibility to receive educational, medical, or any of the other v eterans benefits. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.
.
 : (Decisional) ( ) . The Applicant contends his d ischarge was inequitable , because it was based on an isolated incident in 28 months of service with no other adverse action . Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of performance, 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. T he Applicant violat ed Article 112a of the UCMJ. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB found the characterization of the Applicant ’ s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contend s his d ischarge was improper , because no other test s were conducted to disprove the one that tested positive. The Applicant ’ s urine sample was sent to the Navy Drug Screening Lab oratory (NDSL) where it was inspected for container damage or evidence of tampering, with particular attention to the condition of the box seals. After the sample passed this inspection, a lab technician unpacked the urine specimen and carefully checked that the bottle corresponded to the sample entry written on the accompanying chain of custody form (DD 2624). The bottle was then removed and inspected with the technician looking for container discrepancies, such as a broken

bottle, damage of tamper evidence seals, missing, incorrect, or incomplete social security number on the bottle label or DD 2624, and leakage of urine. The lab would have reported any discrepancies back to the command. If the discrepancies we re serious enough to raise doubt in the validity of the results, the sample would not have been tested. The NDSL conduct ed an initial screening test on the specimen , where it tested positive . They then tested it a second time. After the second positive, the NDSL considered the sample a “presumptive positive.” The sample then underwent a Gas Chromatography/Mass Spectrometry confirmation test. The specimen tested positive in all three tests (screen, rescreen , and confirmatory) and passed scrutiny in numerous reviews by drug testing experts prior to being certified as a positive result and reported to the Applicant’s command. This certification, which wa s made by a senior chemist, wa s the final seal of approval necessary prior to reporting the specimen as a positive. If the final certifying official ha d any doubt as to the accuracy, scientific validity , or legal defensibility of the test results, the specimen would have been reported as negative in favor of the service member. 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 for additional information.


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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