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NAVY | DRB | 2013_Navy | ND1301092
Original file (ND1301092.rtf) Auto-classification: Denied

ex-AZ3, USN
Current Discharge and Applicant’s Request
Application Received: 20130424
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)        20030513 - 20040127     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20040128     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070918      Highest Rank/Rate: AZ3
Length of Service : Y ear ( s ) M onth ( s ) 22 D a y ( s )
Education Level:        AFQT: 64
Evaluation M arks:         Performance: 4.0 ( 4 )      Behavior: 3.51 ( 4 )       OTA: 3.91

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

Periods of UA /C ONF :

NJP:

- 20 070718 :      Article ( Failure to obey order or regulation , Zoloft )
         Awarded: Suspended:

SCM:     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:                  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 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 contends her discharge was improper due to the use of coercion, unlawful influence, and unlawful inducement during her verbal interrogation with NCIS to include securing a written confession by falsifying the production of evidence.
 2 .       The Applicant contends her administrative separation board was incompetent due to the 2-1 recommendation for retention in the I nactive R eady R eserve with a drug abuse discharge .
 3 .       The Applicant contends her discharge was based on an isolated incident in 43 months of service with no other adverse action.
4.       The Applicant contends her post-service conduct warrants consideration for an upgrade.
5 .       The Applicant contends she is innocent of drug abuse as evidenced by her negative urinalysis.
Decision

Date: 20 1 3 1003             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 sta ndards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article ( Failure to obey order or regulation, Zoloft , ) . The Applicant a pre-service drug waiver prior to entering the Navy. Based on the Navy’s Zero - Tolerance Drug Policy , 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 and request an administrative board , which voted 3-0 that the preponderance of the evidence support ed the reason for processing, 3-0 tha t the respondent be separated, 2-1 that the discharge be characterized as G eneral ( U nder H onorable C onditions), and 2-1 that Applicant be allowed to transfer to the I nactive R eady R eserve . The Separation Authority approved the board’s findings and discharged the Applicant accordingly.

: (Decisional) ( ) . The Applicant contends her discharge was improper due to the use of coercion, unlawful influence, and unlawful inducement during her verbal interrogation with NCIS to include securing a written confession by falsifying the production of evidence . During the separation proceedings, the Applicant exercised her right to consult with counsel, request a hearing before an Administrative Separation Board, and submit a rebuttal to the separation. The Applicant believed there was mitigating circumstances and fulfilled her obligation to contest those charges at the time they were made. During an Administrative Separation Board, s he utilized her opportunity to mount a defense against the charges. The Applicant submitted additional evidence to support h er contention . As was the case with her NJP of 18 July 2007 , the false charge of cocaine use from her coerced confession was not brought before the board as a reason for separation. The NCIS agent was questioned and his interrogation techniques brought into question during both her NJP a nd separation proceedings. Ultimately, her admission to using Zoloft without a prescription was determined to be her violation of the Navy’s Zero - Tolerance Drug Policy and the basis for separation. Relief denied.
: (Decisional) ( ) . The Applicant contends her administrative separation board was incompetent due to the 2-1 recommendation for retention in the I nactive R eady R eserve with a drug abuse discharge , which is in violation of Naval Military Personnel Manual Article 1910-518. The NDRB determined this error in recommending participation in the Individual Ready Reserve does not invalidate or render improper the board’s finding that the preponderance of the evidence supported discharge for drug abuse. Relief denied.
: (Decisional) ( ) . The Applicant contends her discharge was based on an isolated incident in 43 months of service with no other adverse action. The Applicant states her in-service character is demonstrated by promotion to Petty Officer Third Class, two time selection as S ailor of the Q uarter, assignment as the A ssistant L ead ing P etty O fficer of her section, and a Good Conduct Medal. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Violation of the Navy’s Zero - Tolerance Drug Use 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 Applicant was found guilty at NJP of using the prescription drug Zoloft without a prescription. However, h er command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. The NDRB determined her discharge was warranted, proper, and equitable on this issue. Relief denied.
4 : (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends her post-service conduct warrants consideration for an upgrade. The NDRB considers 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. The Applicant provided a personal statement and 10 character references. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. T he Board determined the characterization of service received was appropriate considering the length of service and UCMJ violation. Relief denied.
Issue 5: (Decisional) ( ) . The Applicant contends she is innocent of drug abuse as evidenced by her negative urinalysis. The Applicant was not processed for separation for her alleged cocaine use but was processed for separation after being found guilty at NJP of violating UCMJ Article 92 in that she failed to obey an order or regulation with the use of unprescribed Zoloft. The record of evidence does not indicate the Applicant had a prescription for Zoloft at the time of her admission. The use of a prescription drug without a prescription is a violation of the Navy’s Zero - Tolerance Drug Policy , even if the prescription drug could be a possible treatment option a licensed medical provider could prescribe for the individual’s condition. A positive urinalysis is not a requirement for processing for Misconduct (Drug Abuse). Regardless of the Applicant’s contention that her drug abuse was self-disclosed, not proven on a urinalysis, and intended only to treat a diagnosed medical condition, processing for administrative separation was mandatory. However, after reviewing the facts and circumstances unique to this case, to include the record of service and the Applicant’s statement and those of her fellow Sailors and supervisor, the NDRB determined that although the discharge was proper, it was not equitable. Therefore, the NDRB voted 3-2 to upgrade the characterization of service to Honorable but voted 5-0 to not change the narrative reason for separation, which will remain Misconduct (Drug Abuse). Relief granted.
Summary: After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration her statement and those of her fellow Sailors, and the facts and circumstances unique to this case, the NDRB determined relief is warranted based on equitable grounds. The NDRB voted 3-2 to upgrade the characterization of service and 5-0 to not change the narrative reason for separation. Therefore, the awarded characterization of service shall but 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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