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NAVY | DRB | 2012_Navy | ND1200559
Original file (ND1200559.rtf) Auto-classification: Denied

ex-HMCS, USN
Current Discharge and Applicant’s Request
Application Received: 20120112
Characterization of Service Received:
Narrative Reason for Discharge: SUFFICIENT SERVICE FOR RETIREMENT
Authority for Discharge: MILPERSMAN 1830-040

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:      

Summary of Service

 Prior Service:
Inactive:         US N R (DEP)        19791019 - 1980030 2     Active:   19800303 - 19831114
                                    19831115 - 19871105
                                    1987110 6 - 19 91 03 2 4
                                    19 910325 - 19940 2 2 4
                                    19 94 0225 - 199 7 02 24
                                    19 97 0 225 - NFIR
                                    NFIR - 20070331
Period of Service Under Review:
Date of Current Enlistment: 20070401     Age at Enlistment: 45
Period of E nlistment : Years Extension
Date of Discharge: 20100228      Highest Rank/Rate: HMCM
Length of Service: Y ear s M onth s 28 D a ys
Education Level:        AFQT: 69
Evaluation M arks:         Performance: AVAILABLE

Awards and Decorations ( per DD 214):      Pistol MSM (2) (3) (8) (3) (2) (4) ESBI FLOC
Periods of UA /C ONF :

NJP : S CM : 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, ( MILPERSMAN 1830-040 ), change 17, re-issued December 2006 , Transfer to Fleet Reserve and Release from Active Duty .

B. 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.

C . 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 his discharge was improper , because his chain of command deliberately exploited the administrative process as a means to deny him legal standards of accountability and burden of proof, as well as fail ed to follow all existing regulations and policies as they relate to the disciplinary and separation process.
 2.       The Applicant contends he did not wrongfully use marijuana.
Decision

Date: 20 1 2 1206             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SUFFICIENT SERVICE FOR RETIREMENT.

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. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in non-judicial punishment (NJP) or court-martial. However, the record did reflect the Applicant had a positive urinalysis of 163 ng/ml (THC) from random drug testing on 19 August 2009. The Applicant refused NJP on 19 October 2009. As a result, t he Applicant was administratively processed for separation by his command due to violating Uniform Code of Military Justice (UCMJ) Article 112a (Wrongful use, possession, etc., of controlled substances ) . Based on the Article 112a violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board . On 8 December 2009 , an A dministrative S eparation B oard (ASB) found by a vote of 3-0 that the preponderance of the evidence did support a finding of misconduct under Naval Military Personnel Manual ( MILPERSM A N ) Article 1910-146 (Separation by Reason of Misconduct - Drug Abuse) and voted 3-0 to recommend separation Under Other Than Honorable Conditions and voted 3-0 to recommend a retirement grade reduction to E - 8.

The Applicant provided a personal statement, his ASB’s counsel’s letter of deficiency , a letter of explanation from his neighbor, and 1 1 letters of character reference on his behalf as additional documentation for the NDRB’s consideration or to rebut the Government’s presumption of regularity that was not already documented in his official military record of service.
: (Decisional) ( ) . The Applicant contends his discharge was improper , because his chain of command deliberately exploited the administrative process as a means to deny him legal standards of accountability and burden of proof, as well as failed to follow all existing regulations and policies as they relate to the disciplinary and separation process. Pursuant to Navy regulation s , violation of UCMJ Article 112a requires 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 Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE, states that administrative separation processing is mandatory for any member having a positive urinalysis that was tested and confirmed positive at a Navy Drug Screening Lab or other Department of Defense approved lab. The drug abuser must be processed using administrative board procedures (MILPERSMAN 1910-404) with Under Other Than Honorable being the least favorable characterization of service considered . The command did not have to refer the Applicant to NJP or court-martial . Even though the Applicant contends that his commanding officer’s belief that the Applicant did not knowingly use an illegal drug should not have led to an administrative separation board, it was unclear as to when the commanding officer made this determination (that is, before or after the board). The NDRB conducted a thorough review of the Applicant’s ASB and separation proceedings and found no impropriety. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or the Separation Authority in the discharge process. He was afforded full due process and all rights under the UCMJ . Relief denied.

Issue 2: (Decisional) (Equity) RELIEF WARRANTED. The Applicant contends he did not wrongfully use marijuana. The NDRB conducted a thorough review of the Applicant’s service record during his 30 years of outstanding and impeccable service , his personal statement, the Letter of Deficiency from his counsel at his ASB, the character references, and the letter of explanation from his neighbor and concluded that he did not wrongfully or knowingly ingest marijuana. Therefore, the NDRB determined the Applicant’s discharge Under Other Than Honorable Conditions was inequitable and voted unanimously to upgrade his characterization of service to Honorable. Relief granted.

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 the discharge was proper but not equitable . Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain SUFFICIENT SERVICE FOR RETIREMENT . 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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