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NAVY | DRB | 2011_Navy | ND1102053
Original file (ND1102053.rtf) Auto-classification: Denied

ex-IT2, USN
Current Discharge and Applicant’s Request
Application Received: 20110823
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)        19870316 - 19870405     Active:   19870406 - 19910402 HON
                                    USN 19910403 - 19980713 HON
                                    USN 19980714 - 20010920 HON
                 
Period of Service Under Review:
Date of Current Enlistment: 20010921     Age at Enlistment: 36
Period of E nlistment : Years 19 MONTHS Extension
Date of Discharge: 20070206      Highest Rank/Rate: IT1
Length of Service : Y ear s M onth s 16 D a ys
Education Level:        AFQT: 24
Evaluation M arks:         Performance: 4.0 ( 6 )      Behavior: 3.5 ( 6 )        OTA: 3.74

Awards and Decorations ( per DD 214):      Rifle EX GCM (5) Flag LOC (2) NDSM (2) MUC (3) AFEM SSDR (2) NMCAM ESWS
Periods of UA /C ONF :

NJP: 1
- 20060724 :      Article (Wrongful use of a controlled substance , Cocaine, 191 ng/ml , o/o 20060627 )
         Awarded : RIR (to E-5) FOP RESTR EPD S usp ended: RESTR EPD (suspend 6 months)

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

Administrative Corrections to the Applicant’s DD 214

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

          “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19870406 UNTIL 20010920 ”
         “ 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 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.        Applicant seeks a discharge upgrade to qualify for retirement benefits.
2.       Applicant contends he should have received a medical retirement as he tested positive for HIV .
3.       Applicant contends the drug test during which he tested positive is invalid because he was assigned as an observer.
4 .       Applica nt contends he did not knowi ngly come into contact with a controlled substance.
 5 .       Applicant contends he was denied a court-martial as requested.
Decision

Date: 20 1 2 07 25             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. The NDRB conducted a thorough review of the Applicant’s service records to determine whether his discharge met the pertinent standards for propriety and equity. The Applicant’s record of service included one nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession, etc. of a controlled substance, Cocaine , 191 ng/ml, as evidenced by NAVDRUGLAB report dated 30 June 2006 for unit urinalysis collection conducted on 27 June 2006 ). The record also revealed the Applicant admitted to pre-service illegal use of marijuana three times prior to entering the Navy. Based on the Article 112a violation, processing for administ rative separation is mandatory per the Naval Military Personnel Manual (MILPERSMAN) . When notified of administrative separation processing using the administrative board procedure on 2 November 2006 , the Applicant exercised his rights to consult with a qualified coun sel, submit a written statement , and request an administrative separation board . The administrative board hearing was conducted on 3 November 2006. Upon conclusion o f the b oard proceedings, the Senior Member reported the b oard’s findings and recommendations as follow s : (By 3-0 vote) via a preponderance of the evidence, the Applicant committed drug abuse misconduct; (By 3-0 vote) the Applicant should be separated from the Navy; (By 3-0 vote) the Applicant should receive an Under Other Than H onorable Conditions discharge. On 20 November 2006 , t he Applicant’s C ommanding O fficer endorsed the b oard recommendations, concurring with the finding of misconduct, but not concurring with the b oard’s recommendation for administrative separation. On 26 Jan 200 7 , after considering the facts and circumstances surrounding the Applicant’s case, the Commander, Navy Personnel Command directed that the Applicant be separated from the Navy with an Under Other Than Honorable Conditions discharge due to Misconduct (Drug Abuse). The Applicant was discharged on 6 February 2007 , as directed.

: (Nondecisional) The Applicant seeks a discharge upgrade to qualify for retirement benefits. The NDRB has no jurisdiction over retirement, reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces . Only the B oard for Correction of Naval Records can make changes that affect qualification for retirement, reinstatement , or reenlistment . Additionally, t he U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB , as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends he should have received a medical retirement as he tested positive for HIV. D epartment of Defense (DoD) regulations do not authorize separation or retirement based on a service member’s HIV positive status. Members who test positive are medically evaluated to determine fitness for continued service as with any other progressive illness. Only when HIV positive service members demonstrate any unfitting conditions of immunologic deficiency, neurologic involvement, or progressive clinical or laboratory abnormalities associated with HIV or an AIDS-defining condition shall they be processed through the disability evaluation system. Additionally, 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. Accordingly, the NDRB determined this issue did not provide a basis for which relief could be granted. Relief denied.

: (Decisional) ( ) . The Applicant contends the drug test during which he tested positive is invalid because he was assigned as an observer. T he NDRB conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. The available documentation indicates the Applicant submitted a urine sample on 27 June 2006 that resulted in a positive test result for cocaine (191 ng/ml). The records also indicate the Applicant submitted another urine sample on 5 July 2006, which was reported negative to his command on 7 July 2006. The Applicant, in his letter to the NDRB, contends he was a urinalysis program observer during the 5 July 2006 urinalysis test collection at his unit which , by urinalysis program regulation , would have prevented him from submitting his own sample. Although the Applicant’s records do not contain the documentation from the unit urinalysis test collections completed on 27 June and 5 July 2006, the available documentation clearly reflects that the Applicant’s urine sample collected on 27 June 2006 tested positive for cocaine (191 ng/ml) and required mandatory processing for administrative discharge per the MILPERSMAN. After careful consideration of the available evidence, and with no credible evidence submitted by the Applicant during his NJP, administrative separation board hearing , or to the NDRB to rebut the presumption of regularity in this case, the NDRB determined this issue to be without merit. Relief denied.

: (Decisional) ( ) . The Applicant contends he did not knowingly come into contact with a controlled substance. The NDRB conducted a detailed analysis of the available records and could find no evidence in the records nor did the Applicant submit any evidence to rebut or otherwise question the presumption of regularity in his administrative separation from the Navy for misconduct due to drug abuse. The Applicant was found guilty at NJP on 24 July 2006 for violation of UCMJ Article 112a (evidenced by NAVDRUGLAB urinalysis test report) . When notified of pending administrative separation processing for misconduct (drug abuse) on 2 November 2006, the Applicant requested an administrative separation board and received a full hearing on 3 November 2006. Upon completion of testimony and presentation of all the evidence, the b oard concluded by a 3-0 vote that the Applicant did commit the misconduct for which he had previously been found guilty at NJP and recommended he be separated from the Navy with an Under Other Than Honorable Conditions discharge. Further, i n his endorsement of the a dmin b oard findings, the Applicant’s Commanding Officer stated the Applicant failed to present an affirmative defense to support an unknowing injestion of cocaine and therefore the presumption of wrongful use was maintained. After careful consideration of all the available evidence, and with no evidence submitted by the Applicant to rebut or otherwise question the presumption of regularity in this case, the NDRB determined this issue did not provide a basis for which relief could be granted. Relief denied.

Issue 5: (Decisional) ( ) . The Applicant contends he was denied a court-martial as requested. The Applicant submitted to the NDRB an unsigned memorandum from himself to his Officer in Charge (dated 10 July 2006) in which he request ed a trial by court - martial and his willingness to submit a hair sample for analysis. However, per the Manual for Courts-Martial United States, members who initially refuse NJP and demand trial by court-martial may still be subject to NJP if they are attached to or embarked aboard a vessel if so authorized by the Secretary concerned. For reason(s) not specified within the record, the Applicant’s request for trial by court-martial was not granted. Nevertheless, the Applicant was afforded the rights to appeal his NJP sentence , to rebut his proposed administrative separation at an administrative separation board hearing , and to submit a letter of deficiency regarding his administrative separation board proceedings . After careful consideration of all the available evidence, to include the evidence submitted by the Applicant and the administrative processes conducted at the time of his separation, the NDRB determined this issue did not provide a basis for which relief c ould be granted. 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 the administrative 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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