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NAVY | DRB | 2012_Navy | ND1201485
Original file (ND1201485.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20120626
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: EARLY RELEASE - OTHER ; EARLY RELEASE - ATTEND SCHOOL

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19950131 - 19950911     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19950912     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19970807      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 93
Evaluation M arks:         Performance: 1.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of C ONF : NFIR

NJP:

- 19960808 :      Article (Absence without leave , 2 specifications )
         Specification 1: 0530-0745, 19960724
         Specification 2: 0500, 19960803 - 1200, 19960804, 1 day)
         Article (Failure to obey order or regulation , 7 specifications )
         Specifications 1-3: Consuming alcohol while under age 21 on 19960712, 19960723, and 19960803
         Specification 4: Wrongfully smoking an unknown substance on the fantail on 19960721
         Specification 5: Wrongfully smoking an unknown substance during darken ship on 19960721
         Specification 6: Wrongfully throw trash over the side on 19960721
         Specification 7: Wrongfully possessing drug paraphernalia on 19960722
         Awarded: Suspended:

- 19960822 :      Article ( Absence without leave - failing to go to restricted personnel musters at 0630, 19960819 and 0630, 19960821 , 2 specifications )
         Awarded: Susp ended:

SCM:

- 19970509 :       Art icle (Absence without leave 19961007-19970212, 128 days)
         Art icle (Missing movement on 19961008)
         Art icle (General A rticle - wrongful overindulgence in intoxicating liquor or drugs incapacitated for the proper performance of duties)
          Sentence : 25 DAYS

SPCM:    C C :


Retention Warning Counseling :

- 19950913 :       For your failure to disclose required basic enlistment eligibility information. Marijuana 12 x, 4/92-8/95, while in DEP and faulty equipment, 3/95, dismissed.

- 19960808 :       For being on unauthorized absence from 0530-0745, 19960724 and from 0500, 19960803 to 1200, 19960804, consuming alcohol while under the age of 21 on 19960712, 19960723 , and 1990803, by wrongfully smoking an unknown substance on the fantail on 19960721, by wrongfully smoking on the fantail during darken ship on 19960721, by throwing trash over the side without permission on 19960721, and by possessing drug paraphernalia on USS ESSEX on 19960722.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

          “ ”
         “ 96AUG03, 96OCT07-97FEB12 ”

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 :        

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630620, SEPARATION OF ENLISTED PERSONNEL 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 that, per OPNAVINST 5350.4D, paragraph 6.L, he should have received alcohol rehabilitation treatment and been returned to full duty so he could have had a successful career in the Navy.
2.       The Applicant contends that OPNAVINST 5350.4D, paragraph 6.L(2) states that members should be administratively separated if they have an alcohol-related incident after treatment. He contends he should never have been administratively separated, because he did not receive alcohol rehabilitation treatment.
3.       The Applicant contends that OPNAVINST 5350.4D, paragraph 6.L(4) states that alcohol abusers will be offered treatment before separation, but he was never offered alcohol rehabilitation treatment prior to separation.
4.       The Applicant contends that OPNAVINST 5350.4D, Enclosure 2, paragraph 3.b states that only urinalysis from a Navy Drug Screening Laboratory (NDSL) or other DOD-certified lab will be used to establish a basis for separation and characterization of service. He contends he never tested positive on any of the numerous urinalysis tests he took.
5.       The Applicant contends that after each incident, he did not receive counseling or treatment, just escalating punishments, and it was the restrictive liberty policy on deployment that led to him going UA. He contends that if he had received help in the beginning, the situation would never have escalated to this point. Also, he contends that if he had been given the counseling and treatment that currently serving enlisted Sailors receive, then he could have completed his enlistment and received an Honorable discharge.
6.       The Applicant contends that since he enrolled as a full-time college student immediately after being discharged, his narrative reason for separation should change to “Early Release - Other” or “Early Release - Attend School.”
Decision

Date : 20 1 3 0410             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 provided no 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 and medical record . 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) warnings, for o f the Uniform Code of Military Justice (UCMJ): Article ( Absence without leave , of 24 hours or less ), Article ( Failure to obey order or regulation , 7 specifications ) , and for of the UCMJ : Article ( Absence without leave , of 128 days ) , Article 87 (Missing movement , 2 specification s ), and Article 134 (General A rticle , 1 specification of overindulgence in liquor or drugs incapacitated for performance of duties) . The Applicant a pre-service drug waiver prior to entering the Navy , however, he received a Page 13 retention counseling on 13 September 1995 for failure to disclose marijuana use (x12) while in the Navy ’s D elayed E ntry P rogram . When notified of administrative separation processing using the procedure for Misconduct (Serious Offense), Misconduct (Pattern of Misconduct), and Misconduct (Drug Abuse) , the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . The Separation Authority, after reviewing the facts and circumstances of the Applicant’s service, ordered the Applicant to be administratively separated Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

Issue s 1 -3 : (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that, per OPNAVINST 5350.4D, paragraph 6.L, he should have received alcohol rehabilitation treatment and been returned to full duty so he could have had a successful career in the Navy. The Applicant contends that OPNAVINST 5350.4D, paragraph 6.L(2) states that members should be administratively separated if they have an alcohol-related incident after treatment. He contends he should never have

been administratively separated, because he did not receive alcohol rehabilitation treatment. The Applicant contends that OPNAVINST 5350.4D, paragraph 6.L(4) states that alcohol abusers will be offered treatment before separation, but he was never offered alcohol rehabilitation treatment prior to separation. It is not incumbent upon the Navy to definitively identify every Sailor who may have a substance abuse problem or to refer every Sailor who has an alcohol-related incident to be medically screened for a substance abuse problem. Treatment options are available, and the Sailor bears the responsibility to seek out treatment if he believes he has a substance abuse problem. The lack of medical screening or the lack of treatment does not excuse or mitigate misconduct. Since he was never screened as being dependent on alcohol or drugs, OPNAVINST 5350.4D is not relevant to, or mitigates, his misconduct. Since he never received treatment for alcohol abuse, subsequent misconduct could not be identified as further alcohol-related incidents and so he was never identified or processed for administrative separation due to being an Alcohol Rehabilitation Failure. During separation proceedings, if diagnosed as being dependent on alcohol or drugs by competent medical authority, which does not include the commanding officer, appropriate treatment must be offered prior to separation. The purpose of this treatment is not to rehabilitate a service member for further service but rather to provid e treatment before separation. The lack of this screening or treatment during separation does not mitigate or excuse the misconduct, nor does it render the discharge improper. Relief denied.

: (Decisional) ( ) . The Applicant contends that OPNAVINST 5350.4D, Enclosure 2, paragraph 3.b states that only urinalysis from an NDSL or other DOD-certified lab will be used to establish a basis for separation and characterization of service. He contends he never tested positive on any of the numerous urinalysis tests he took. Paragraph 3.b pertains to the propriety of only testing urinalysis samples at an NDSL or other DOD-certified labs and not at other labs or by using other tests, such as testing hair samples. It does not mean that a Sailor cannot be discharged for Misconduct (Drug Abuse) without a positive urinalysis. Per Nav al Military Personnel Manual (MILPERSMAN) , (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630620, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - DRUG ABUSE , “ A member must be mandatorily processed for separation based upon one or more military offenses or civil convictions, or action taken which is tantamount to a finding of g uilt (i.e. , admission or entry in pretrial intervention or similar programs with civilian authorities) for the following:
         a. Drug Abuse. The illegal or wrongful use or possession of controlled substance(s).

          b. Drug Paraphernalia. All equipment, products, and materials that are used, intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise introducing into the human body controlled substances in violation of the law. ”

On 8 August 1996 at NJP, the Applicant was found guilty of possessing drug paraphernalia. Possession of drug paraphernalia is a violation of the Navy’s zero - tolerance drug policy and is grounds for administrative separation processing. A positive urinalysis is not necessary for administrative separation for drug abuse. After subsequent misconduct, his command notified him of administrative separation for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct). The Separation Authority chose Misconduct (Drug Abuse) as the primary reason for separation and ordered the Applicant to be discharged Under Other Than Honorable Conditions. The NDRB determined his discharge was proper. Relief denied.
Issue 5: (Decisional) ( ) . The Applicant contends that after each incident, he did not receive counseling or treatment, just escalating punishments, and it was the restrictive liberty policy on deployment that led to him going UA. He contends that if he had received help in the beginning, the situation would never have escalated to this point. Also, he contends that if he had been given the counseling and treatment that currently serving enlisted Sailors receive, then he could have completed his enlistment and received an Honorable discharge. One day after beginning his active-duty enlistment, the Applicant was formally counseled , in writing, on his failure to disclose pre-service marijuana use and warned that further misconduct could lead to his discharge. He was also dropped from the Navy’s nuclear power program. Eleven months later, the Applicant was found guilty at NJP of committing violations of UCMJ Articles 86 and 92. Violations of Article 92 are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and could have resulted in a punitive discharge (i.e., Bad Conduct or Dishonorable) at a Special or General Court-Martial. After this NJP, the Applicant received a second retention warning counseling, in writing, concerning the inappropriateness of his misconduct and that further misconduct could result in his discharge. Two weeks later, the Applicant was found guilty at his second NJP for violating UCMJ Article 86. At this point, the Applicant met the requirements for administrative separation processing for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct). Faced with a Sailor who had multiple instances of misconduct and who had received multiple counselings to address this poor behavior, his commanding officer imposed liberty restrictions for an upcoming deployment. Liberty in foreign ports is a privilege and not a right. It is the c ommander’s authority to grant liberty, or restrict liberty, as he de termines to be appropriate. The Applicant’s record of


misconduct indicates he was at risk for future misconduct , and so his commanding officer appropriately restricted his liberty. Going into a UA period of 128 days is not mitigated or excused by the assignment of restricted liberty. The Applicant was responsible for his behavior and conduct, and there is nothing in his records to show that he was not responsible for his conduct or should not be held accountable for his misconduct. Extended periods of UA such as 128 days typically result in charges being referred to a Special or General Court-Martial that result in a Bad Conduct or Dishonorable Discharge. However, upon returning from his extended UA period, his command leniently took the Applicant to a Summary Court-Martial and processed him for administrative separation. After a complete review of the records and facts and circumstances unique to this case, the NDRB determined the Applicant’s command counseled him appropriately and frequently and imposed warranted punishments after each instance of misconduct. However, despite counselings and warnings and being allowed to correct his behavior with continued retention in the Navy, the Applicant continued to commit misconduct and was ultimately leniently discharged Under Other Than Honorable Conditions. The NDRB determined his discharge was proper and very equitable. Relief denied.

Issue 6 : (Decisional) ( ) . The Applicant contends that since he enrolled as a full-time college student immediately after being discharged, his narrative reason for separation should change to “Early Release - Other” or “Early Release - Attend School.” Neither of these narrative reasons apply to the Applicant. He met the requirements for separation for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct), he was properly notified of these bases for separation, he waived his rights to consult with qualified counsel, submit a written statement, and appear before an administrative separation board, and the Separation Authority properly and equitably ordered his discharge Under Other Than Honorable Conditions for Misconduct (Drug Abuse). 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 . Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for further review from the NDRB . The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for any further reviews or issues. Their website is 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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