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NAVY | DRB | 2012_Navy | ND1201879
Original file (ND1201879.rtf) Auto-classification: Denied

ex-AM3, USN
Current Discharge and Applicant’s Request
Application Received: 20120911
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)        20031022 - 20031102     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20031103     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070709      Highest Rank/Rate: AM3
Length of Service: Y ear( s ) M onth( s ) 07 D a y ( s )
 Education Level:        AFQT: 58
Evaluation M arks:         Performance: 3.5 ( 6 )      Behavior: 2.5 ( 6 )        OTA: 2.99

Awards and Decorations ( per DD 214):      (2)

Pe riods of C ONF :

NJP :

- 20051021 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Awarded: Suspended:

- 20060614 :      Article (Assau lting or willfully disobeyin g superior commissioned officer)
         Article 112 (Drunk on duty)
         Awarded : Susp ended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20051021 :       For violation of UCMJ Art icle 86 ( Absence without leave ) and Art icle 92 ( Failure to obey order or regulation ) .

Administrative Corrections to the Applicant’s DD 214

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

          “ MISCONDUCT (SERIOUS OFFENSE) ”

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 11 June 2008, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation s of the UCMJ, Article s 90, 92, and 112 .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.        The Applicant contends his positive test for D-Amphetamine was caused by mishandling of his and his shipmate’s medications while assi gned to the restricted barracks.
2.       The Applicant contends he requested a court-martial and a polygraph to prove his innocence, but he was denied both.
 3 .       The Applicant contends his discharge was based on isolated incident s not related to each other in 44 months of service.

Decision

Date : 20 1 3 0606             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. 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 and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave ), Article 92 ( Failure to obey order or regulation), Article 90 (Assaulting or willfully disobeying superior commissioned officer), and Article 112 (Drunk on duty). Based on the offenses committed by the Applicant and a positive urinalysis for D-Amphetamine , command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant waived right to consult with a qualified counsel but elected to submit a written statement . The Applicant was not entitled to an administrative board.

: (Decisional) ( ) . The Applicant contends his positive test for D-Amphetamine was caused by mishandling of his and his shipmate’s medications while assigned to the restricted barracks. When the Applicant’s command became aware of his positive urinalysis, the Applicant claimed he was innocent and that his prior command had cleared him of any misconduct. His command investigated the Applicant’s claims at the time and determined that a preponderance of the evidence supported misconduct. I nquiries were made into the possibility that t he Applicant’s prescription medications might cause a positive result for D-Amphetamine and whether the previous command m ishandled the Applicant’s medications. The evidence of the command’s investigations convinced the commanding officer that the Applicant’s contentions were false. 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 his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his urinalysis results were false or the result of mishandled medications by his command. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he requested a court-martial and a polygraph to prove his innocence, but he was denied both. A servicemember does not have the right to appear before a court-martial or take a polygraph to prove his innocence. He may request them, but his command is not obligated to give them to him. A commanding officer only needs a preponderance of the evidence to initiate administrative separation proceedings. In this case, the Applicant’s positive urinalysis provided the preponderance of the evidence that he committed serious misconduct. Relief denied.





: (Decisional) ( ) . The Applicant contends his discharge was based on isolated incident s not related to each other in 44 months of service. On 21 October 2005, the Applicant was found guilty at NJP for violati ng UCMJ Articles 86 and 92. His command issued him a P age 13 retention warning after his NJP that said further misconduct could result in his separation from the Navy . On 14 June 2006, the Applicant was found guilty at NJP for violati ng UCMJ Articles 90 and 112. At this point, according to the Naval Military Personnel Manual, the Applicant met the requirements for administrative separation for Misconduct (Pattern of Misconduct) and Misconduct (Serious Offense). The incidents of misconduct do not need to be related. Despite the pattern of misconduct, his command leniently allowed him to continue his service. After a positive urinalysis, however, his command determined to process him for administrative separation. At this point, the Applicant also met the requirements for separation due to Misconduct (Drug Abuse). While the Applicant warranted an Under Other Than Honorable Conditions discharge, the NDRB is not authorized to change a characterization of service to a more unfavorable level. Despite being eligible for discharge due to commission of a serious offense, a pattern of misconduct, and drug abuse, his command leniently recommended a General discharge. The NDRB determined his discharge was warranted, proper, and very equitable. 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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