Search Decisions

Decision Text

NAVY | DRB | 2012_Navy | ND1200376
Original file (ND1200376.rtf) Auto-classification: Denied

ex-AEAN, USN
Current Discharge and Applicant’s Request
Application Received: 20111202
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)        20011001 - 20011212       Active:  
                  20020131 - 20020423

Period of Service Under Review:
Date of Current Enlistment: 20020424     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060731      Highest Rank/Rate: AE3
Length of Service : Y ear s M onth s 08 D a ys
Education Level:        AFQT: 82
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 4.0 ( 3 )        OTA: 3.67

Awards and Decorations ( per DD 214):      EAWS

Periods of UA /C ONF :

NJP:
- 20060317 :      Article (Wrongful use, possession, etc. of controlled substances , Cocaine 12,076 ng/ml , N AVDRUGLAB dtd 20060221 )
         Awarded: Suspended:

SCM:     SPCM:    C C :      Retention Warning Counseling :

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.       The Applicant contends the discharge was inequitable since the Applicant was being processed by the Physical Evaluation Board (PEB).
2 .        The Applicant contends the Navy Drug Screening Laboratory ’s (NDSL ’s ) expert witness provided testimony to the administrative separation board regarding the Applicant’s urine sample and gave no indication that there were problems with the NDSL ’s procedures and protocols .
3 .       The Applicant contends he was legally prescribed Oxycodone during the time period covering the Applicant’s urinalysis , and since the Applicant’s sample did not test positive for Oxycodone , then the potentially false negative calls into question whether the lab results were accurate.
4.       The Applicant contends he was innocent as demonstrated by him successfully pa ssing a polygraph examination.

Decision

Date : 20 1 2 0925             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 discharg e 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 for o f the Uniform Code of Military Justice (UCMJ): Article ( Wrongful use, possession, etc. of controlled subst ances, Cocaine, 12,076 ng/ml, NAVDRUGLAB dtd 20060221). The Applicant ha d a pre-service drug waiver for using marijuana during a previous Delayed Entry Program period. 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 or not the Applicant waived rights to consult with a qualified counsel and submit a written statement . However, the Applicant has a GKK separation code on his DD Form 214 , which indicates he exercised his right to request an administrative board. In addition, the Applicant provided a copy of a Letter of Deficiency dated 15 June 2006 that indicated he h ad an administrative separation board .

: ( D ecisional) (Propriety/Equity) The Applicant contends the discharge was inequitable since he was being processed by the PEB. Department of Defense (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 P EB , 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. Relief denied.

: (Decisional) ( ) . The Applicant contends the NDSL ’s expert witness provided testimony to the administrative separation board regarding his urine sample and gave no indication that there were problems with the NDSL ’s procedures and protocols . The Applicant c laim s the NDSL ’s expert witness later testified in an unrelated case that the NDSL in Jacksonville had failed a D o D inspection during the period in which the Applicant’s urine sample was tested , and this information would have been vital evidence for the administrative separation board to consider in determining the merits of the Applicant’s case. The only evidence provided to substantiate this claim was a newspaper article titled, “Sailor facing drug charge says testing full of flaws , ” published in The Virginia n- Pilot on 3 August 2006. The newspaper article is not significant enough to throw the validity of the Applicant’s positive test into question. Relief denied.



: (Decisional) ( ) . The Applicant contends he was legally prescribed Oxycodone during the time period covering the Applicant’s urinalysis , and since the Applicant’s sample did not test positive for Oxycodone , then the potentially false negative calls into question whether the lab results were accurate. The NDSL 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, confirmed, and all procedures have been followed before a message is released. All three tests (screen, re-screen, and confirmation) must be positive before a positive result is reported to the command. The lack of a positive test for Oxycodone does not prove that the Applicant’s positive result for Cocaine was inaccurate . Relief denied.

: (Decisional) ( ) . The Applicant contends he was innocent as demonstrated by him successfully passing a polygraph examination. The Applicant’s administrative separation package was not in his service record, however , the Applicant’s Letter of Deficiency dated 15 June 2006 indicat ed the Applicant’s date of administrative separation board was 14 June 2006 . T he date of the Applicant’s polygraph exam was 3 March 2006 . Since the polygraph exam ination was prior to the administrative separation board, the Applicant would have had the opportunity to use this evidence during the administrative separation board. The Applicant submitted no new evidence regarding the polygraph examination after the date of the administrative separation board . After reviewing the report, the NDRB determined it did not demonstrate whether or not the Applicant used cocaine. 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 but must submit a new DD Form 293 to schedule the hearing . 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

Similar Decisions

  • USMC | DRB | 2010_Marine | MD1002107

    Original file (MD1002107.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues Decisional issues:The Applicant and her counsel contend the following issues resulted in an improper discharge and an inequitable discharge characterization of service: (1) the Applicant should have been medically discharged with disability; (2) the Applicant’s new chain of command refused medical care and broke all contact with the medical staff; (3) the chain of command...

  • USMC | DRB | 2015_Marine | MD1500764

    Original file (MD1500764.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum ; however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an...

  • NAVY | DRB | 2011_Navy | ND1100520

    Original file (ND1100520.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • NAVY | DRB | 2014_Navy | ND1401529

    Original file (ND1401529.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to...

  • NAVY | DRB | 2015_Navy | ND1501144

    Original file (ND1501144.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application...

  • USMC | DRB | 2015_Marine | MD1500724

    Original file (MD1500724.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT. ” Additional Reviews : After a document review has...

  • USMC | DRB | 2013_Marine | MD1301443

    Original file (MD1301443.rtf) Auto-classification: Denied

    of controlled substances)- 20110425: For drug abuse and advisement of being processed for administrative separation Types of Documents Submitted/reviewedRelated 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...

  • NAVY | DRB | 2011_Navy | ND1101712

    Original file (ND1101712.rtf) Auto-classification: Denied

    The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of...

  • NAVY | DRB | 2015_Navy | ND1401743

    Original file (ND1401743.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain SECRETARIAL AUTHORITY. ” Additional Reviews : After a document...

  • USMC | DRB | 2013_Marine | MD1301355

    Original file (MD1301355.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief granted.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to.The Applicant is not eligible for further reviews by the NDRB. ” Additional Reviews :...