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NAVY | DRB | 2013_Navy | ND1300125

Original file (ND1300125.rtf) Auto-classification: Denied

ex-AOAA, USN

Current Discharge and Applicant’s Request

Application Received: 20121024

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)        20030326 - 20030908     Active:

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20030909     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060117      Highest Rank/Rate: AOAN
Length of Service : Y ear ( s ) M onth ( s ) 08 D a y ( s )
Education Level:        AFQT: 38
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 3.0 ( 3 )        OTA: 2.97

Awards and Decorations ( per DD 214):

Periods of C ONF :

Lost time per DD214: 20051124 - 20051130, 6 days

NJP:

- 20051026 :      Article 86 (Absence without leave , 3 specifications )
         Specification 1: 0730, 20051015 until 0840, 20051016, 1 day
         Specification 2: 1100, 20051021 until 0730, 20051024, 3 days
         Specification 3: 0730, 20051003 until 1000, 20051005, 2 days
         Article 89 (Disrespect toward superior commissioned officer)
         Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
         Article (Wrongful use, possession, etc. of controlled substances , marijuana )
         Awarded: Susp ended:

SCM:     SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ MISCONDUCT(DRUG ABUSE) ”

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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until 1 June 2008, 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 seeks to improve her employment opportunities.
2.       The Applicant seeks Department of Veterans Affairs ( VA ) benefits.
3 .       The Applicant seeks copies of all personnel and medical records from the military.
4 .       The Applicant contends she is innocent of drug abuse and received poor legal advice.

Decision

Date : 20 1 3 0620             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 for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave , 3 specifications : Specification 1: 0730, 20051015 until 0840, 20051016, 1 day ; Specification 2: 1100, 20051021 until 0730, 20051024, 3 days ; and Specification 3: 0730, 20051003 until 1000, 20051005, 2 days ), Article 89 (Disrespect toward superior commissioned officer) , Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer) , and Article (Wrongful use, possession, etc. of controlled substances, marijuana) . The Applicant a pre-service drug waiver for using illicit drugs prior to entering the Navy. Based on the Article 112a 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, submit a written statement , and request an administrative board . The Applicant was notified of separation proceedings for Commission of a Serious Offense and Drug Abuse. The administrative board voted 3-0 that the preponderance of the evidence supported Drug Abuse , but the preponderance of the evidence did not support Commission of a Serious Offense. The administrative board voted 3-0 to recommend separation Under Other Than Honorable Conditions. The Separation Authority concurred with the recommendations and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse).

: (Nondecisional) The Applicant seeks to improve her employment 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.

: (Nondecisional) The Applicant seeks VA 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.

: (Nondecisional) The Applicant seeks copies of all personnel and medical records from the military. The NDRB is not the agency of record holding any of the Applicant’s service or medical records, and, as such, is not authorized to release copies of service or medical records or other documents that are under the cognizance of another government department, office, or activity. The Applicant should refer to http://www.archives.gov and look for Military Service Records under the Most Requested Se ction of the website to order her service or medical records.

4 : (Decisional) ( ) . The Applicant contends she is innocent of drug abuse and received poor legal advice. Contrary to the Applicant’s claim, she was not charged with violation of UCMJ Article 112a (Wrongful use, possession, etc. of a controlled substance) on 5 October 2005, which is the day before she provided a urine sample for a random drug test. A review of the records shows the Applicant was in an unauthorized absence status from 3-5

October 2005. Upon her return, she was processed through a Disciplinary Review Board and Executive Officer’s Investigation with the recommendation to proceed to NJP (Captain’s Mast) for violation of UCMJ Article 86 (Absence without leave), Article 89 (Disrespect toward a superior commissioned officer), and Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer ) . On 19 October 2005, the Applicant’s urinalysis results came back positive for THC, and this charge was added to her NJP, which occurred on 26 October 2005. After being found guilty at NJP of violating UCMJ Articles 86, 89, 91, and 112a, her command processed her for administrative separation, and she elected all rights, including the rights to consult with counsel, make a written statement, and appear before an administrative separation board. While at the restriction barracks, the Applicant was found with three bottles of substances that were designed to beat hair-follicle drug testing. After further misconduct, she was kicked out of the restriction barracks. The Applicant provided negative drug lab samples that were collected on 11 November 2005 and 29 November 2005 to the NDRB. The second test was a hair-follicle test. These negative results do not overturn or negate the positive test for THC from the earlier r andom urinalysis. The NDRB discerned no impropriety in the Applicant’s case and determined she was afforded full due process and all applicable rights. The record contained no evidence of any wrongdoing by the Applicant’s counsel or anyone else in the discharge process. The NDRB determined her discharge was warranted, proper, and 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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NAVY | DRB | 2013_Navy | ND1300125

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