Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1300067
Original file (ND1300067.rtf) Auto-classification: Denied

ex-OSSA, USN
Current Discharge and Applicant’s Request
Application Received: 20121010
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)        20080718 - 20090121     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090122     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110706      Highest Rank/Rate: OSSN
Length of Service: Y ear( s ) M onth( s ) 15 D a y ( s )
 Education Level:        AFQT: 62
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.0 ( 2 )        OTA: 2.34

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

- 20110307 :      Article (Failure to obey order or regulation)
         Awarded: Suspended:

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until 17 August 2011, 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 of the UCMJ, Article 92 .


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

Applicant’s Issues

 1.       The Applicant wants to be reinstated into the Navy.
2 .        The Applicant contends he never tested positive for Spice and was improperly discharged as a result.
3 .       The Applicant contends his discharge was improper due to gross misrepresentations made by the Recorder at his Administrative Separation Board.
4 .       The Applicant contends his discharge was unjust due to degradation of his due process rights.
Decision

Date : 20 1 3 0701             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 proprie ty. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey order or regulation , 2 specifications of using Spice and introducing Spice aboard a Naval vessel). The Applicant did not have a pre-service drug waiver prior to entering the Navy. Based on the offenses committed by the Applicant, command administratively processed for separation. 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 5 May 2011, an Administrative Separation Board determined by a preponderance of the evidence that the Applicant committed a serious offense, that he should be administratively separated, and that he should be separated Under Other Than Honorable Conditions .

Issue 1: (Nondecisional) The Applicant wants to be reinstated into the Navy. The NDRB is not authorized to reinstate former Sailors into the Navy. The NDRB is only authorized to review the propriety and equity of a discharge. The Board for Correction of Naval Records, however, is authorized to reinstate former Sailors and can be petitioned using DD Form 149.

 : (Decisional) ( ) . The Applicant contends he never tested positive for Spice and was improperly discharged as a result. The Navy policy on the wrongful use of Spice is set forth in NAVADMIN 146/11 and dated 28 April 2011. The policy authorizes a charge of Article 112a (Wrongful possession, use, etc. of a controlled substance) for Spice , however, it still allows commanders to charge a member subject to the UCMJ with violation s of Article 92 (Failure to obey order or regulation) for Spice . Positive urinalysis results for Spice may only be charged under either article and used for separation if the urinalysis was conducted at an approved Department of Defense laboratory. However, t he Applicant was not separated as a result of a positive urinalysis test from either an approved laboratory or an unapproved laboratory. The Applicant was charged with violation of Article 92 and processed for administrative separation based on a Naval Criminal Investigative Service (NCIS) investigation in which the Applicant was implicated by eye witnesses and confessed to NCIS agents in a written statement that he used Spice and introduced Spice aboard a Naval vessel. His discharge was both proper and equitable, and a n Under Other Than Honorable Conditions discharge was warranted. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was improper due to gross misrepresentations made by the Recorder at his Administrative Board hearing. After reviewing the proceedings of the Administrative Separation Board, the Letter of Deficiency, and the Applicant’s counsel’s argument in his DD Form 293, t he NDRB did not find any evidence to support the Applicant’s contention. The NDRB determined that NAVADMIN 146/11 was properly applied. Relief denied.


Issue 4 : (Decisional) ( ) . The Applicant contends his discharge was unjust due to degradation of his due process rights. The Applicant was the subject of an investigation for violation of the UCMJ. The Applicant was given his rights, confessed to violating the UCMJ, and made a sworn statement of admission. The Applicant was found guilty of violation of Article 92 at NJP . He could have refused NJP and demanded trial by court-martial where the rules of evidence apply. The Applicant accepted NJP instead. The Applicant exercised his rights in the administrative separation process to consult with counsel, submit a written statement, and appear before an administrative separation board, which voted 3-0 that a preponderance of evidence supported that the Applicant had committed a serious offense, 3-0 that he be administratively separated from the Navy, and 2-1 that he be separated Under Other Than Honorable Conditions. After review of the b oard’s decision and the Applicant’s L etter of D eficiency, the Separati on Authority agreed with the b oard’s conclusions , found no merit in the Letter of Deficiency, and discharged the Applicant. The NDRB found no evidence in the record to support the Applicant’s contention that he was not afforded due process. 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

Similar Decisions

  • USMC | DRB | 2013_Marine | MD1301642

    Original file (MD1301642.rtf) Auto-classification: Denied

    After reviewing all the facts and circumstances of the case and reviewing the recommendations from the chain of command, the Commanding General determined to not suspend the separation and ordered the Applicant to be discharged 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 summary of service, record entries and discharge process, the Board found Therefore, the awarded...

  • USMC | DRB | 2013_Marine | MD1300886

    Original file (MD1300886.rtf) Auto-classification: Denied

    of controlled substances, marijuana)Awarded: Suspended: SCM:SPCM:CC: Retention Warning Counseling: Types of Documents Submitted/reviewedRelated 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...

  • NAVY | DRB | 2011_Navy | ND1101340

    Original file (ND1101340.rtf) Auto-classification: Denied

    Representation: 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include...

  • NAVY | DRB | 2012_Navy | ND1201015

    Original file (ND1201015.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Applicant seeks an upgrade to qualify for G.I. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing...

  • NAVY | DRB | 2011_Navy | ND1101105

    Original file (ND1101105.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” 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. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.

  • NAVY | DRB | 2012_Navy | ND1201667

    Original file (ND1201667.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends he has never used “Spice, ” never tested positive for drugs, and received a Good Conduct Medal.2. Representation: 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...

  • NAVY | DRB | 2010_Navy | ND1000586

    Original file (ND1000586.rtf) Auto-classification: Denied

    On 08 April 2009, the Separation Authority approved the Command’s recommendation for discharge and designated that the basis for separation would be Misconduct (Commission of a Serious Offense), having determined that the evidence of record supported the discharge and that the characterization of service as recommended, was warranted. The Separation Authority reviewed the evidence of record and the gravity of the charges and directed the Applicant be discharged for Misconduct (Commission of...

  • NAVY | DRB | 2013_Navy | ND1301612

    Original file (ND1301612.rtf) Auto-classification: Denied

    The Board determined 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 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 remains eligible for a personal appearance hearing for 15...

  • NAVY | DRB | 2013_Navy | ND1300473

    Original file (ND1300473.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends his discharge was based on an isolated incident in 44 months of otherwise honorable service.2. The administrative board determined the preponderance of the evidence supported the basis for separation and recommended a suspended separation with a General (Under Honorable Conditions) discharge. ” Additional Reviews : After a document review has been...

  • USMC | DRB | 2012_Marine | MD1200055

    Original file (MD1200055.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated 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/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...