Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1300676
Original file (ND1300676.rtf) Auto-classification: Denied

ex-AA, USN
Current Discharge and Applicant’s Request
Application Received: 20130220
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)        20090602 - 20090624     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090625     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20130118      Highest Rank/Rate: AN
Length of Service: Y ear s M onth s 24 D a ys
Education Level:        AFQT: 72
Evaluation M arks:         Performance: 3.25 ( 4 )     Behavior: 3.0 ( 4 )        OTA: 3.0

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :
- 20120605 :      Article (Failure to obey order or regulation, wrongfully using an over-the-counter drug or pharmaceutical compound with the intent to induce or enable intoxication, excitement, or stup e f a ction of the central nervous system from on or about 20120421 until 20120506)
         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 36, effective 18 August 2011 until Present, 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 an upgrade to pursue his life goals and go to college.
2 .       The Applicant contends he was not aware use of over-the-counter cough medication was in viola tion of Navy regulations.
3 .       The Applicant contends his punishment for a first-time, isolated incident was too harsh, and then he was summarily discharged.
4 .       The Applicant contends he remained in the Navy for an other 8 months and completed a deployment after receiving maximum punishment at Captain’s Mast.
 5 .       The Applicant contends he was denied due process.

Decision

Date: 20 1 3 1016             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 discharge 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 NDRB completed a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the standards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 (Failure to obey order or regulation, wrongfully using an over-the-counter drug or pharmaceutical compound with the intent to induce or enable intoxication, excitement, or stup e f a ction of the central nervous system from on or about 20120421 until 20120506 ) . Based on violati ng t he Navy Drug Policy, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant exercised his right to submit a statement, but waived rights to consult with a qualified counsel and request an administrative board .

Issue 1: (Nondecisional) The Applicant wants an upgrade to pursue his life goals and go to college. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing one’s pursuit of life goals or employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.
: (Decisional) ( ) . The Applicant contends he was not aware use of over-the-counter cough medication was in viola tion of U.S. Navy regulations. The Applicant was found guilty at NJP (Captain’s Mast) of violating UCMJ Article 92 (Failure to obey an order or regulation, by wrongfully using an over-the-counter drug or pharmaceutical compound with the intent to induce or enable intoxication, excitement or stupefaction of the central nervous system). The Navy’s zero-tolerance drug policy specifically prohibits the use of any product to get high, and it was the duty of the Applicant to follow this order. Relief denied.

: (Decisional) ( ) . The Applicant contends his punishment for a first-time, isolated incident was too harsh, and then he was summarily discharged. Certain serious offenses , even though isolated, warrant separation from the Navy to maintain proper order and discipline. Violation of the Navy ’s zero-tolerance drug policy 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. The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Additionally, administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. Th e Applicant’s contention that he was punished twice or that it was too harsh is erroneous. T he NDRB determined his discharge was proper and equitable. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends he remained in the Navy for an other 8 months and completed a deployment after receiving maximum punishment at Captain’s Mast. The Applicant was notified of administrative separation processing on 10 June 2012 and discharged on 18 January 2013 . The NDRB determined that , despite the length of time to process the Applicant’s administrative separation , his discharge from the Nav y was proper and equitable. Relief denied.

5 : (Decisional) ( ) . The Applicant contends he was denied due process. The Applicant contends he was denied legal counsel throughout the entire process. At NJP, a servicemember does not have the right to counsel, though he may provide one at his own cost. During the subsequent separation proceedings, however, the Applicant waived his right s , in writing, to consult with counsel and request a hearing before an Administrative Separation Board. If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made. During an Administrative Separation Board, he would have had the opportunity to mount a defense against the charges. After a complete review of the records, the NDRB determined the Applicant received full due process throughout the entire process and was discharged properly and equitably. 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 T herefore, 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 | 2011_Marine | MD1101547

    Original file (MD1101547.rtf) Auto-classification: Denied

    For reasons undetermined, the Applicant was not processed for administrative separation from the Marine Corps for Misconduct-Drug Abuse, which would normally result in an Under Other Than Honorable Conditions discharge. Therefore, in accordance with the MARCORSEPMAN, the awarded characterization of service shall HONORABLE and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE. ” Additional Reviews : After a document review has been conducted, former...

  • NAVY | DRB | 2011_Navy | ND1101434

    Original file (ND1101434.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant contends Spice was not illegal to be sold in retail at the time of his discharge. 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,...

  • NAVY | DRB | 2012_Navy | ND1200826

    Original file (ND1200826.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...

  • NAVY | DRB | 2011_Navy | ND1100693

    Original file (ND1100693.rtf) Auto-classification: Denied

    The board had no dissenting opinion in this case.On 26 March 2007, after receiving and reviewing the typed record of proceedings of the administrative board, the Applicant’s Commanding Officer forwarded the findings of the board to the Separation Authority via the chain of command as required by Article 1910-704 of the MILPERSMAN. The Separation Authority determined that the evidence of record supported the basis for discharge and that the characterization of service,Under Other Than...

  • USMC | DRB | 2014_Marine | MD1400970

    Original file (MD1400970.rtf) Auto-classification: Denied

    The notification letter specifically states, “The factual basis for the recommendation of drug abuse is your wrongful possession of designer drug ‘Spice’ on or about 3 June 2010.” The record clearly shows the Applicant exercised his right to counsel and waived his rights to submit a written statement and request an administrative board. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application...

  • NAVY | DRB | 2012_Navy | ND1200869

    Original file (ND1200869.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to reenlist into the Armed Forces.2. A former servicemember has 15 years from the date of his discharge to apply to the NDRB for an upgrade to an unfavorable discharge, however, the NDRB does not issue automatic upgrades based upon the passage of time since a discharge. ” Additional Reviews : After a document review has been conducted, former...

  • 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...

  • USMC | DRB | 2013_Marine | MD1300404

    Original file (MD1300404.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. However, the Applicant in no way warranted the hazing he received while on active duty, but the NDRB determined he was given mitigation for his misconduct by the Separation Authority when he determined to discharge the Applicant with a General characterization of service. ” Additional Reviews : After a document review has been conducted, former members are eligible for a...

  • NAVY | DRB | 2012_Navy | ND1200741

    Original file (ND1200741.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant contends he was wrongfully accused of using Spice.2. Decision Date: 20130117Location: Washington D.C.Representation: OFFICE OF VETERAN SERVICES 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...

  • USMC | DRB | 2011_Marine | MD1101243

    Original file (MD1101243.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1.The Applicant seeks an upgrade to enhance employment opportunities.2. 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 . ” Additional Reviews...