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NAVY | DRB | 2011_Navy | ND1101806
Original file (ND1101806.rtf) Auto-classification: Denied

ex-SHSN, USN
Current Discharge and Applicant’s Request
Application Received: 20110726
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)        20020927 - 20030601     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20030602     Age at Enlistment:
Period of E nlistment : Years 31 MONTHS Extension
Date of Discharge: 20091120      Highest Rank/Rate: SH3
Length of Service : Y ear s M onth s 19 D a ys
Education Level:        AFQT: 34
Evaluation M arks:         Performance: 3.3 ( 6 )      Behavior: 3.3 ( 6 )        OTA: 3.29

Awards and Decorations ( per DD 214):      MUC G C M (2) NDSM GWOTSM GWOTEM SSDR

Periods of UA /C ONF :

NJP: 1

- 200908 20 :      Article 112a (Wrongful use of controlled substance, Marijuana , 108 ng/ml )
         Awarded: RIR FOP Suspended:

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

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.       Applicant seeks an upgrade for employment opportunities.
2.       A pplicant contends she never used marijuana.
 3.       Applicant contends she received inequitable treatment during her discharge process and that her narrative reason for discharge is inequitable.
4.       The Applicant contends other Sailors are allowed to remain in service after drug use or are discharged without the Drug Abuse narrative reason on their DD 214s.
5.       The Applicant contends her discharge was illegal.

Decision

Date: 20 1 2 0503             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 Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the U niform Code of Military Justice (UCMJ): Article 112a (Wrongful use of controlled substance, Marijuana, 108 ng/ml) . The 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 procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . The Administrative Board voted 3-0 to recommend the Applicant be separated due to Misconduct (Drug Abuse) and that her character of service be General (Under Honorable Conditions).

: (Nondecisional) The Applicant seeks an upgrade for employment 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.
: (Decisional) ( ) . The Applicant contends she never used marijuana.
 The Applicant provide d no documentation to rebut the positive THC test and the conduct of government affairs. The Applicant’s record included a Summary Report for Laboratory Accession dated 20090911 that showed the Applicant tested positive for THC in a urine sample. In addition, the chain of custody documentation for the handling of the Applicant’s urine sample was foun d to be proper. Furthermore, the Applicant’s record reflects ample opportunities to remov e herself from the environment in which she lived and ultimately blamed for the marijuana test result . The Applicant was informally mentored by a Chief Petty Officer on several occasions to move out from the apartment that the Applicant and her young daughter shared with a known marijuana user. Despite the Applicant’s claim that she did not knowingly use marijuana, her sample tested positive for THC, and she provided no documentation or explanation for the presence of THC in her urine. The NDRB found no impropriety or inequity in her discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends she received inequitable treatment during her discharge process , though she was not specific as to the inequitable treatment . Despite 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 , performance, 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, her command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The Applicant elected to appear

before an Administrative Separation Board to present her case for retention in the Navy. The board voted unanimously that the preponderance of the evidence showed that the Applicant wrongfully used an illegal substance and that she should be discharged with a General (Under Honorable Conditions) characterization of service. The Applicant’s command and Separation Authority concurred, and she was discharged for Misconduct (Drug Abuse). A ccording to Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUS E , the narrative reason for separation of Misconduct (Drug Abuse) is proper and accurately describes the reason for the Applicant’s discharge. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends other Sailors are allowed to remain in service after drug use or are discharged without the Drug Abuse narrative reason on their DD 214s. The Applicant submitted three articles, two of which refer to a Naval Academy Midshipman who was allowed to remain in the Navy despite having failed a urinalysis. E ach case must stand on its own merits. The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual. Therefore , no two cases, no matter how similar, are guaranteed to receive the same punishment. The Applicant tested positive for marijuana, was found guilty at NJP, and appeared before an Administrative Separation Board where the determination was made that the preponderance of the evidence showed that the Applicant used marijuana and should be discharged from the Navy. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. In fact, most Sailors who test positive for an illegal drug receive an Under Other Than Honorable Conditions discharge. A preponderance of the evidence reviewed supports the conclusion that the Applicant abused drugs, that separation from the Naval Service was appropriate, and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

Issue 5: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant submitted an online article from About.com and contends her discharge for drug abuse was illegal. The online article refers to a U.S. Army test that was conducted prior to 1975 where Soldiers were tested to identify drug abusers and to identify Soldiers for drug rehabilitation treatment. Those who tested positive were discharged for Drug Abuse, but a United States District Court subsequently ruled that anyone identified as a drug user from this specific test could be discharged but could not be characterized for Misconduct (Drug Abuse) since the urine samples were taken solely for the purpose of a research project. The Applicant’s positive test for THC has nothing to do with the pre-1975 U.S. Army test. She tested positive for THC, was informed of discharge proceedings, elected an administrative separation board, and was properly and equitably discharged with a General (Under Honorable Conditions) characterization of service f or Misconduct (Drug Abuse). 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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