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NAVY | DRB | 2011_Navy | ND1101322

Original file (ND1101322.rtf) Auto-classification: Denied

ex-DC3, USN

Current Discharge and Applicant’s Request

Application Received: 20110426

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)        19990929 - 20000614     Active: 20000615 - 20071114 HON

Period of Service Under Review:
Date of Current Enlistment: 20071115     Age at Enlistment: 27
Period of E nlistment : Years Extension
Date of Discharge: 20100810      Highest Rank/Rate: DC2
Length of Service : Y ear s M onth s 26 D a ys
Education Level:        AFQT: 31
Evaluation M arks:         Performance: 3.6 ( 5 )      Behavior: 2.8 ( 5 )        OTA: 3.29

Awards and Decorations ( per DD 214):      Rifle MM Pistol MM NMCAM (3) NUC MUC NAVY “ E” GCM (3) NDSM GWOTEM GWOTSM SSDR (2) OSR (3)

Periods of UA /C ONF :

NJP: 1

- 20100723 :      Article 86 (Absence without leave, UA, 2 specifications)
         Specification 1: 20100620 - 20100621, 1 day
         Specification 2: 20100702 - 20100705, 4 days
         Article 92 (Failure to obey order or regulation)
         Article 112a ( Wrongful use, possession, etc., of controlled substances - marijuana )
         Awarded: RIR FOP RESTR Suspended: FOP

SCM: NONE        SPCM: C C :

Retention Warning Counseling : 1

- 20090721 :       For failure to meet physical readiness test standards

Administrative Corrections to the Applicant’s DD 214

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

         Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000615 UNTIL 071114 ”
         “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ MISCONDUCT (DRUG ABUSE) ”
         “ 20100620 - 20100621 (1), 20100702 - 20100705 ( 4 ) ”

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 29, effective 10 November 2009 until Present, 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 was wrongfully charged with UCMJ Article 112a violation , because there was no positive drug test and the charge was based on his admission to medical doctors while seeking medical attention .

Decision

Date: 20 1 2 0313 Location: Washington D.C . R epresentation : NONE

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. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and one nonjudicial punishment (NJP)) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence with out leave, UA, 2 specifications : 20100620 - 20100621, 1 day , and 20100702 - 20100705, 4 days ), Article 92 (Failure to obey order or regulation) , and Article 112a ( Wrongful use, possession, etc., of controlled substances - marijuana ) . Th e Applicant did not have a pre-service waiver for illicit drug use 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 administrative board procedure, the Applicant his rights to consult with a qualified coun sel, submit a written statement , and request an administrative board .

: (Decisional) ( ) . The Applicant contends he was wrongfully charged with UCMJ Article 112a violation , because there was no positive drug test and the charge was based on his admission to medical doctors while seeking medical attention. The NDRB discerned from the Applicant’s statement on his DD Form 293 that he properly self - referred to a military medical doctor about his drug use . Self - referral of drug use has to meet certain criteria pursuant to SECNAVINST 5300.28D to omit the individual from facing disciplinary actions in addition to administrative separation . If the Applicant is implying that he properly self-referred , the Board found no evidence of that in his records. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record s , nor has the Applicant produced any evidence, to support the contention that he self-referred or reported his illicit drug use to any military doctor. In a careful review of t he A pplicant’s service record , it does reflect that he admitted to his commanding officer during NJP proceedings o n 23 July 2010 that he smoked marijuana . A positive urinalysis is not necessary to find a Sailor guilty of violating UCMJ Article 112a. The record also reflects that the Applicant , when notified of administr ative separation processing, waived his right to an administrative board . If the Applicant felt he was wrongly charged , it was his obligation to contest those charges at the time they were made. During an administrative separation board, he would have had the opportunity to mount a defense against the charges against him . The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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 | 2011_Navy | ND1101322

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