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NAVY | DRB | 2012_Navy | ND1200327
Original file (ND1200327.rtf) Auto-classification: Denied
ex-GMSN, USN
Current Discharge and Applicant’s Request
Application Received: 20111115
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)        20020925 - 20021015     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20021016     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061013      Highest Rank/Rate: GM3
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: 3.0 ( 4 )      Behavior: 2.8 ( 4 )        OTA: 2.92

Awards and Decorations ( per DD 214):      Pistol , , , , ,

Periods of UA /C ONF :

NJP:

- 20060925 :      Article (Wrongful use, possession, etc, of a controlled substance - marijuana ( THC 148 ng/ml ) )
         Awarded: Suspended:

SCM:              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:

         “ MILPERSMAN 1910-146 ”
         “ ”

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 :        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 Nondecisional issues: (1) The Applicant seeks all documents regarding his service within the Department of Defense pursuant to the Freedom of Information Act. (2) The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable in or der to facilitate access to Department of Veterans Affairs b enefits programs (medical and educational). (3) The Applicant hereby rescinds his DD Form 214, claiming it is invalid and is not authorized or endorsed by the Applicant.

Decisional issues : The Applicant seeks an upgrade in the characterization of his service at discharge, contending that his service was honorable as demonstrated by his being awarded the Navy Good Conduct Medal.

Decision

Date: 20 1 2 0103            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 one decisional issue for consideration by the NDRB. Additionally, the 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 enlistment , but did document one for o f the Uniform Code of Military Justice (UCMJ): specifically, the Applicant was found guilty of violating Article 112(a) (Wrongful use, possession, etc of a control led substance - marijuana ). The Applicant’s enlistment record does not document any pre-service waivers for drug use . Furthermore, t he Applicant’s official service record reflects signed documents attesting to fully understanding the U . S . Navy Drug and Alcohol Abuse Policy. The Applicant’s service record documents a positive urinalysis result from the Naval Drug Screening Laboratory dated 25 September 2006 for marijuana ( 148 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, then 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) required mandatory processing for separation in accordance with the Navy ’s Zero Tolerance Drug Policy.

The NDRB reviewed the Applicant’s administrative separation package: W hen notified of administrative separation processing using the notification procedure on 25 September 2006 , the Applicant elected to waive his rights to consult with a qualified legal counsel, to submit written matters to the Separation Authority, and to request an administrative board hearing be held to present his case for retention. The Applicant initialed next to the election of each of his choices regarding the rights listed above and further signed and dated the document - a signature that was witnessed by another member who also attested to the notification, election of rights, and understanding by his written signature. 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 Nav al Military Personnel Manual (MILPERSMAN). As such, the 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 characterization of his service with a re-enlistment code of RE-4 (not recommended for reenlistment). As such, the Applicant was issued a Standard Form DD Form 214 reflecting these determinations.




Non-decisional Issue s - (1) The Applicant seeks all documents regarding his service within the Department of Defense pursuant to the Freedom of Information Act. (2) The Applicant seeks an upgrade in the characterization of his service at discharge to Honorable in order to facilitate access to Department of Veterans Affairs b enefits programs (medical and educational). (3) The Applicant hereby rescinds his DD Form 214, claiming it is invalid and is not authorized or endorsed by the Applicant.

Nondecisional Issue 1 - The NDRB is not the agency of record holding any of the Applicant ’ s service or medical records , and, as such, is not authorized to release copies of service or medical records or other documents that are under the cognizance of another government department, office, or activity . T he Applicant should refer to http://www.archives.gov/ and look for Military Service Records under the Most Requested Section of the website to order his service or medical records .

Nondecisional Issue 2 - There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon wh ich the NDRB can grant relief.

The Applicant is directed to the Addendum , specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA) , who determine eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an A pplicant upon their request. The Applicant should refer to the Veterans Administration website ( http://www1.va.gov/opa/Is1/1.asp ) for additional assistance regarding a benefit determination review .

Nondecisional Issue 3 - The DD Form 214 is prescribed by Department of Defense for use by all military services and is an important record of service used by the Services for administrative processing and enlistment/reenlistment determination , by other Agencies in determining eligibility for employment or other benefits , and by former service members for personal use. Therefore, the DD Form 214 must be accurate and complete. For s ervice m embers who refuse to sign the DD Form 214 at the time of separation/discharge, the issuing S ervice is directed to e nter “Signature Unattainable” and to annotate the refusal to sig n the document at time of discharge in Block 18 ( R emarks ) and document the reason for refusal to sign in the service record. Upon completion of the DD Form 214, distribution will be made to the required agencies : Department of Veterans Affairs, Department of Labor, Department of Veterans Affairs State Director, and to the Applicant’s service record. A careful review of the Applicant’s separation DD Form 214 shows that the Applicant did sign his DD Form 214 and so no remarks were required to document a refusal to sign the document. The NDRB did note , however, administrative errors on the original DD Form 214:

         “ MILPERSMAN 1910-146 ”
         “ ” .

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD Form 214 be corrected as appropriate.
The Applicant does not have the right to summarily rescind the DD Form 214. As such, the NDRB determined that this issue was without merit and does not provide a foundation upon which the NDRB can grant relief.

(Decisional Issues) ( ) . The Applicant seeks an upgrade in the c haracterization of his service at discharge, contending that his service was honorable as demonstrated by his being awarded the Navy Good Conduct Medal.

Propriety - The Applicant was recommended for administrative separation based on a notification of Misconduct (Drug Abuse) due to his violation of Article 112 (a) of the UCMJ and the Navy Zero Tolerance Policy regarding I llegal Drug use. The factual basis of this notification was evidenced by the positive urine sample test results (metabolites of marijuana - THC - an illegal, controlled substance with the presence in a Sailor ’ s body being illegal at any time). In accordance with paragraph 1910-146 of the MILPERSMAN , the Applicant was notified - in writing - of his command ’ s action to process him for administrative separation with their recommendation for an Under Other Than Honorable Conditions characterization of his service. The Applicant was further afforded the right to consult with counsel and to present his case to an administrative hearing board - he declined - in writing - to exercise either of these options. The Separation Authority, in concert with his Staff Judge Advocate ’s review, determined that the factual basis required for discharge pursuant to paragraph 1 910-146 had been established; as such, he approved the proposed separation action and characterization of service and directed the Applicant’s discharge. The NDRB determined that the separation was proper and that the narrative reason for separation was accurate. A change would be inappropriate. Relief denied.


Equity - The Applicant contend s that his service was honorable as demonstrated by his being awarded the Navy Good Conduct Medal. The Applicant was awarded the Navy Good Conduct Medal for his conduct during the first three years of his enlistment; however, he violated the UCMJ and received nonjudicial punishment approximately 6 months later. D espite a service member’s prior record of service, certain serious offenses, though isolated, warrant separation from the Naval S ervice in order to maintain proper order and discipline. Violation of Article 112(a) is one such offense requiring mandatory processing for administrative separation, regardless of grade, performance, service record, or time in service. This action usually results in an unfavorable characterization of service at discharge or, at a maximum, a punitive discharge with the possibility of confinement, if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not opt to pursue a punitive discharge , but instead chose the more lenient administrative discharge process. The Applicant d id not contest the separation.

Characterization of service at discharge is the recognition of a Sailor ’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation. When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions. An Under Other Than Honorable Conditions discharge 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 S ervice. Moreover, the service record documents the Applicant’s acknowledg ment of the U.S. Navy Drug Policy; the Applicant was fully aware of the zero tolerance policy toward illegal drug use and was fully aware of the consequences for violating that policy. The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of service, was conduct involving one or more acts or omissions ( i llegal drug use) and did reflect a significant departure from that conduct expected of a service member . The record clearly documents willful misconduct and demonstrated that he was unfit for further service. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. T he awarded characterization, as issued, was appropriate. Relief denied.
Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, discharge process, and documentation provided by the Applicant, the NDRB found the discharge was proper and equitable as issue . Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain (DRUG ABUSE) . 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 , VA benefits, and Post-Service Conduct .

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 .



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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