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NAVY | DRB | 2012_Navy | ND1201370
Original file (ND1201370.rtf) Auto-classification: Denied

ex-YN2, USN
Current Discharge and Applicant’s Request
Application Received: 20120608
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)        20060301 - 20060905     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060906     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110525      Highest Rank/Rate: YN2
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 99
Evaluation M arks:         Performance: 4.5 ( 4 )      Behavior: 3.8 ( 5 )        OTA: 3.52

Awards and Decorations ( per DD 214):      NRSR

Periods of UA /C ONF :

NJP:     SCM:     S PCM:    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 29, effective 10 November 2009 until Present, 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 his discharge was based on a single accusation of misconduct for which he has provided overwhelming evidence of his innocence.
2.       The Applicant contends he was denied the proper legal due process that is the very spirit of our Constitution .
 3.       The Applicant contends his commanding officer lied to Congress.
 4.       The Applicant contends his in-service conduct warrants an upgrade to Honorable.
Decision

Date : 20 1 3 0403             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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial . On 07 June 2010, the Applicant participated in a command-wide urinalysis , and his sample tested positive for cocaine. The Applicant a pre-service drug waiver for using illicit drugs prior to entering the Navy. Based on the Article 112a (Wrongful use, possession, etc. of a controlled substance) violation, processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified coun sel and request an administrative board , but waived his right to submit a written statement. The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had conducted misconduct due to drug abuse and recommend ed separation Under Other Than Honorable Conditions for Misconduct (Drug Abuse). The Separation Authority concurred and ordered the Applicant to be discharged .

: (Decisional) ( ) . The Applicant contends his discharge was based on a single accusation of misconduct for which he has provided overwhelming evidence of his innocence. T he 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 had the opportunity to mount a defense against the charge of misconduct due to drug abuse at an administrative board . He submitted significant documentation to the NDRB, much of which was provided at his administrative separation board hearing. The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had co mmitted misconduct due to drug abuse. The documentation submitted by the Applicant does not rebut the administrative board ’s findings or recommendations. After a complete review of the discharge proceedings and the documentation submitted by the Applicant, the NDRB determined his discharge was proper and equitable. Relief denied.
: (Decisional) ( ) . The Applicant contends he was denied the proper legal due process that is the very spirit of our Constitution. The Applicant further contends he refused nonjudicial punishment and when he presented evidence of his innocence , his commanding officer withdrew the charge from court-martial and chose to initiate administrative procedures to separate the Applicant from the Navy. The Applicant did not have the affirmative right to appear before a court-martial. When notified of administrative separation processing, the Applicant elected to consult with qualified counsel and appear before an administrative board . During his administrative board , the Applicant had the opportunity to mount a defense against the charge of misconduct due to drug abuse. The administrative board voted 3-0 that the preponderance of the evidence supported that the Applicant had conducted misconduct due to drug abuse. The Applicant’s counsel submitted a L etter of D eficiency , and the Separation Authority , after considering the Letter of Deficiency, the administrative board proceedings, the Applicant’s record of service, and the discharge proceedings, concurred with the board’s


recommendations and discharged the Applicant Under Other Than Honorable Conditions for Misconduct (Drug Abuse). After a complete review of all documentation in the Applicant’s service and medical records and documentation submitted by the Applicant, the NDRB determined the Applicant was afforded all of his administrative rights pursuant to the separation process , was not denied due process, and was properly and equitably discharged . Relief denied.

: (Decisional) ( ) . The Applicant contends his commanding officer lied to Congress. Specifically, the Applicant contends his commanding officer made a false statement in regards to how the urinalysis supplies we re stored and secured. The Applicant provided photos of unsecured urinalysis supplies; the photos are undated and provide no context of where they are taken or which unit controls the storage area and supplies. Regardless, the record clearly shows the Applicant’s counsel had the opportunity to question the chain of custody at the administrative board but chose not to do so . Therefore, the NDRB determined that this contention does not negate the administrative board’s finding that the Applicant conducted misconduct due to drug abuse. Relief denied.

: (Decisional) ( ) . The Applicant contends his in-service conduct warrants an upgrade to Honorable. Certain serious offenses , even though isolated, warrant separation from the service to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade , performance, awards, or time in service. 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 Service. The NDRB found the characterization of the Applicant’s discharge equitable and consistent with the characterization of discharge given others in similar circumstances. 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. 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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