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NAVY | DRB | 2012_Navy | ND1200593
Original file (ND1200593.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20120119
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)        19990129 - 19990524     Active:  

Period of Service Under Review:
 Date of Current Enlistment: 19990525     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010308      Highest Rank/Rate: SN
Length of Service: Y ear M onth s 14 D ays
 Education Level:        AFQT: 37
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :

- 20000622 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Awarded: CCU Suspended:

- 20001222 :      Article (Wrongful use, possession, etc., of controlled substances as evidenced by NAVDRUGLAB messages, dtg 012222z Nov 00 and dtg 162015z Nov 00 , 2 specifications )
         Specification 1: Wrongfully use marijuana between 20001016 and 20001025
         Specification 2: Wrongfully use marijuana between 20001030 and 20001108
          Article (Larceny , on or about 20001122 stole a Polo jean tee-shirt from the Navy Exchange )
         Awarded: Suspended:

S CM :    SPCM:

C C :

- 20001214 :       Offense: Shoplifting , Belks Department store, on 20001206, charged with petit theft less than $100
         Offense: Resisting - opposing retail merchant
          Sentenc e : Fine $150. 00

Retention Warning Counseling:

- 20000622 :      For disrespect to a Third Class Petty Officer.





NDRB Documentary Review Conducted (date):        20081030
NDRB Documentary Review Docket Number:   ND08-01594
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 15 December 1998 until 21 August 2002,
Article 1910-140, SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

 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 she was not adequately represented in preparation for and during her hearing before the administrative board.
2.       The Applicant contends her positive drug screening urinalysis was faulty.
3 .       The Applicant contends her post-service conduct warrants an upgrade.

Decision

Date: 20 1 2 0320             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. 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 standards of equity and propriety. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, for o f the Uniform Code of Military Just ice (UCMJ): Article 91 ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ), Article 121 ( Larceny ), and Article 112a ( Wrongful use, possession, etc., of controlled substances, 2 specifications ) , and civilian conviction for s hoplifting (petit theft less than $100 ) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedu re, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request an administrative board . On 8 February 2001 , an a dminist rative b oard found, by a vote of 3 to 0, that the preponderance of evidence support ed misconduct due to drug abuse, misconduct due to pattern of misconduct, and misconduct due to civilian conviction. The administrative b oard, by a vote of 3 to 0, recommended that the Applicant be separated Under Other Than Honorable Conditions.

: (Decisional) ( ) . The Applicant contends she was not adequately represented in preparation for and during her hearing before the administrative board. The Applicant contends that her defense counse l advised her to not address her claim that the positive urinaly sis was faulty. The Applicant feels she was denied the opportunity to plead her innocence and present her explanation to the administrative board. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was improperly represented during her administrative board. The Applicant’s testimony and statements alone do not overcome the government’s presumption of regularity in this case. The NDRB determined she received all of her rights with respect to the discharge process and further determined there was no impropriety or inequity with her discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends her positive drug screening urinalysis wa s faulty. The Applicant claim s that sh e at no time used marijuana, that she passed other urine and blood drug tests during the same period of time , and that she passed a lie detector test. The Applicant suggests that the most likely scenario is that her urine sample was inadvertently mislabeled or tampered with . The Applicant tested positive on two separate drug screening urinalys e s as evidenced by NAVDRUG LAB message dtg 012222z Nov 00 and message dtg 162015z Nov 00 . The Navy Drug Screening Laboratory (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. After hearing the Applicant’s testimony and reviewing her documentation, the NDRB determined it was not sufficient to prove her results were false or tampered with . T he NDRB determined the urinalys e s w ere not false positive s . Relief denied.

: (Decisional) ( ) . The Applicant con tends her post-service conduct warrants an upgrade. The NDRB considers 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. The Applicant provided testimony and documentation that included a personal statement, three personal character references, college transcripts, and medical records documenting ongoing medical issues as a result o f a motor vehicle accident that occurred while she was on active duty. Completion of post-service 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. The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, 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 remain . The Applicant is not eligible for additional hearings before the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.


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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