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NAVY | DRB | 2013_Navy | ND1300457
Original file (ND1300457.rtf) Auto-classification: Denied

ex-AR, USN

Current Discharge and Applicant’s Request
Application Received: 20121219
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)        20040913 - 20050605     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20050606     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20080814      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 09 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 2.3 ( 6 )      Behavior: 1.8 ( 6 )        OTA: 2.25

Awards and Decorations ( per DD 214):     

Periods of C ONF :

NJP:

- 20071103 :      Article (Absence without leave , 20071018-20071020, 3 days )
         Awarded: Suspended:

- 20080606 :      Article (Absence without leave)
          Awarded: Suspended:

- 20080728 :      Article (Wrongful use, possession , etc. of controlle d substances, cocaine 1145 ng/ml )
         Awarded: Susp ended:

SCM:     SPCM:

CIVIL ARREST:

- 20080521 :       Charges: Drunk and disorderly

C C :

- 20080519 :       Offense: W et and reckless driving
         Sentence : Fine and 1 year MADD classes

Retention Warning Counseling :

- 20071103 :       For unauthorized absence.

Administrative Corrections to the Applicant’s DD 214

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

          “ ”
         “ 18OCT07 TO 20OCT07 ”

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 23, effective 2 June 2008 until 9 November 2009,
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 she was wrongly accused of drug use and was never given an opportunity to prove her innocence.
 2 .        The Applicant contends t here was an error in the drug test.
 3 .       The Applicant contends the commanding officer already determined she was guilty prior to her Captain’s Mast.

Decision

Date : 20 1 3 0724             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 NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 2 specifications ) and Article (Wrongful use, possession, etc. of controlled substances, cocaine 1145 ng/ml , NAVYDRUGLAB msg dtd 01 May 2008 ) , one civilian arrest for drunk and disorderly, and one civilian conviction for wet and reckless driving. 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 for 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 .

: (Decisional) ( ) . The Applicant contends she was wrongly accused of drug use and was never given an opportunity to prove her innocence. After testing positive for cocaine, the Applicant’s commanding officer found her guilty of violating UCMJ Article 112a at Captain’s Mast. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. However, her command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The record of evidence clearly shows the Applicant waived her rights to an administrative separation board. If the Applicant felt she was mistakenly charged with a crime, it was her obligation to contest those charges at the time they were made. During an administrative separation board, she would have had the opportunity to mount a defense against the charges. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends there was an error in the drug test. The Applicant’s urinalysis tested positive for cocaine, 1145 ng/ml . The Naval Drug Screening Laboratory (NDSL) goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released. There is no requirement for a servicemember to receive additional tests after a positive result. The NDRB determined the Applicant’s statements were not sufficient to prove h er urinalysis results were false or improperly tested . Based on the NDSL message, the NDRB determined the Applicant’s urinalysis was not a false positive and that h er discharge was proper. Relief denied.




: (Decisional) ( ) . The Applicant contends the commanding officer already determined she was guilty prior to her Captain’s Mast . The Applicant provided an e-mail chain between her father and her commanding officer where the commanding officer stated that he would be processing the Applicant for administrative discharge following her NJP. The Applicant contends this statement demonstrates that the commanding officer already determined the Applicant’s guilt, therefore, denying her a fair hearing. Administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial. Before the NJP for violating UCMJ Article 112a, the Applicant had already met the requirements for administrative separation for Misconduct (Pattern of Misconduct) and warranted discharge processing. Additionally, the positive urinalysis for cocaine is a violation of the Navy’s zero-tolerance drug policy and warranted discharge processing without a finding of guilt at NJP. Her commanding officer, however, decided to adjudicate the Article 112a violation at Captain’s Mast. Based on the Applicant’s previous misconduct, the commanding officer’s statement that he already planned on administratively processing the Applicant does not show that he had pre-determined the Applicant’s guilt at NJP or that she did not receive a fair hearing. During the discharge processing, she was offered the right to appear before an administrative separation board, however, she waived that right. The NDRB found n o impropriety with the commanding officer’s actions and determined the Applicant’s 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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