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NAVY | DRB | 2013_Navy | ND1301031
Original file (ND1301031.rtf) Auto-classification: Denied

ex-BMC, USN
Current Discharge and Applicant’s Request
Application Received: 20130322
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)        19951030 - 19960522     Active:   19960523 - 20001205 HON
                                    20001206 - 20040730 HON
                                    20040731 - 20081009 HON

 Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20081010     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110310      Highest Rank/Rate: BMC
Length of Service : Y ear ( s ) M onth ( s ) 01 D a y ( s )
Education Level:        AFQT: 34
Evaluation M arks:         Performance: 4.2 ( 5 )      Behavior: 3.6 ( 5 )        OTA: 3.86

Awards and Decorations ( per DD 214):      (4) (2) (2)

Periods of UA /C ONF :

NJP:

- 20100410 :      Article 92 (Failure to obey order or regulation)
         Article (Wrongful use, possession, etc. of controlled substances , D-Amphetamine 635ng/ml, NAVDRUGLAB msg 061327Z Apr 10)
         Awarded: Suspended:

SCM:     SPCM:    C C :

Retention Warning Counseling:

- 20100225 : Not Found in Record (documented in the admin board recommendation section)

Administrative Corrections to the Applicant’s DD 214

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

          “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 960523 UNTIL 081009 ”

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, 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 would like to change his Re-entry Code.
2 .       The Applicant contends he warrants an upgrade base d on his in-service conduct .
3 .       The Applicant request s a narrative reason change to Secretarial Authority.
4 .       The Applicant contends his discharge was unjust , because his Administrati ve Separation Board (ASB) did not properly follow guidance from Naval Military Personnel Manual ( MILPERSMAN ) Article 1910-212.

Decision

Date: 20131025             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. The 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 in his current enlistment included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation, ) and Article (Wrongful use, possession, etc. of controlled substances, D-Amphetamine 635ng/ml, NAVDRUGLAB msg 061327Z Apr 10 , ) . 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 appeared before the A SB on 08 July 2010. The ASB determined by a unanimous vote of 3-0 that the preponderance of the evidence supported the notification for separation, recommended by a majority vo te of 2 -1 for separation , and recommended by a unanimous vote of 3 -0 th at the Applicant should be separated from the Navy with an Under Honorable Conditions (General) characterization of service . The S eparati on A uthority approved the ASB’s recommendations and discharged him accordingly.

Issue 1: (Nondecisional) The Applicant would like to change his Re-entry 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 Board for Correction of Naval Records 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.
: (Decisional) ( ) . The Applicant contends he warrants an upgrade based on his in-service conduct. T he Applicant received Honorable discharges for his first three enlistments from 23 May 1996 until 09 October 2008 . Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his fourth enlistment, he was found guilty of violating UCMJ Articles 92 and 112a, which requires mandatory processing for administrative separation. Misconduct of this nature, particularly from a senior enlisted member, typically results in an Under Other Than Honorable Conditions characterization of service. After a complete review of the records and after listening to testimony from the Applicant, the NDRB determined the Applicant likely received an Under Honorable Conditions (General) discharge because of his previous honorable service. He elected his right to appear before an ASB, which determined that the preponderance of the evidence supported the notification for separation and further recommended the Applicant should be separated Under Honorable Conditions (General). T he NDRB determined the Applicant was afforded all rights and due process in the separation process and received a n equitable characterization of service. Relief denied.


: (Decisional) ( ) . The Applicant requests a narrative reason change to Secretarial Authority. MILPERSMAN 1910-146 states processing is mandatory for “positive urinalysis that was tested and confirmed positive at a Navy Drug Screening Lab (NAVDRUGLAB) or other Department of Defense (DoD) approved lab. If the commanding officer (CO) determines the urinalysis result was caused by administrative errors (e.g., faulty local chain of custody, evidence of tampering) or the drug use was not wrongful (e.g., prescribed medication, unknowing ingestion), then the member shall not be identified as a drug abuser and the positive urinalysis is not a drug abuse incident.” The Applicant tested positive for D-Amphetamine 635ng/ml, NAVDRUGLAB msg 061327Z Apr 10 . The Applicant was notified of separation proceedings under MILPERSMAN 1910-146 , and the ASB found the preponderance of the evidence supported this basis for separation. Per MILPERSMAN , Change 29, effective 10 November 2009 until Present, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE , the narrative reason for separation is MISCONDUCT (DRUG ABUSE) . Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was unjust, because his ASB did not properly follow guidance from MILPERSMAN Article 1910-212. Article 1910-212 states that there should be four factors considered in retention or separation: seriousness of the offense, likelihood of a recurrence, member’s potential for further service, and member’s military record. After reviewing the ASB proceedings and listening to the testimony of the Applicant and his counsel, the NDRB determined the ASB did take these factors into account when recommending separation Under Honorable Conditions (General). The NDRB further determined the board’s findings were within the guidelines set forth in MILPERSMAN Article 1910-212 , and the Applicant’s separation was proper and equitable. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and service record 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 is not eligible for further reviews from the NDRB. He can p etition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm .




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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