Search Decisions

Decision Text

NAVY | DRB | 2013_Navy | ND1301242
Original file (ND1301242.rtf) Auto-classification: Denied

ex-MASN, USN
Current Discharge and Applicant’s Request
Application Received: 20130521
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: MINOR DISCIPLINARY INFRACTION
        
Summary of Service

 Prior Service:
Inactive:         US N R (DEP)        200603 10 - 20061121     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20061122     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090223      Highest Rank/Rate: MA3
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 45
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.7 ( 3 )        OTA: 3.02

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP:

- 20080116 :      Article ( Conspiracy) [ Extracted from E valuation Report and Counseling Record dated 20080312]
          Article (False official statements)
         Awarded: Suspended:

- 20090108 :      Article (Wrongful use, possession, etc. of controlled substances , marijuana ) [Extracted from Evaluation Report and Counseling Record dated 20090212]
         Article (False official statements)
         Awarded: Susp ended:

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:                  Oth er Documentation:    
                  Additional Statements :
          From Applicant:            From /To Representation:            From /To Congress m ember :        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.        The Applicant contends he is not guilty of marijuana use but falsely confessed after five hours of questioning and then was never offered a urinalysis and was found guilty by association .
2.       The Applicant contends his misconduct was an isolated incident in over two years of service.
3.       The Applicant contends his discharge characterization of service is inequitable for the misconduct of drug abuse.
Decision

Date : 20 1 3 1219             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. T he 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 included for o f the Uniform Code of Military Justice (UCMJ): Article 81 ( Conspiracy ), Article ( False official statements , ), and Article ( Wrongful use, possession, etc. of controlled substances - marijuana ) . 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 .

: (Decisional) ( ) . The Applicant contends he is not guilty of marijuana use but falsely confessed after five hours of questioning and then was never offered a urinalysis and was found guilty by association. The Manual for Courts-Martial United States, Part V, indicates the rules of evidence, other than with respect to privileges, do not apply at NJP proceedings. Therefore, hearsay evidence is permissible and the Applicant’s contention the NJP was based on his false confession and no evidence has no merit. The Applicant has not presented any documentation to prove the commanding officer disregarded relevant information or failed to comply with applicable regulations during the NJP proceedings. The commanding officer only has to have a preponderance of the evidence to find a Sailor guilty at NJP. He did not need, nor was he required to administer, a urinalysis and correctly found the Applicant guilty of violating UCMJ Article 112a based on his confession. Additionally, t he record of evidence clearly shows the Applicant waived his right to an administrative separation board. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a n administrative separation board, he would have had the opportunity to mount a defense against the charges. The Applicant submitted no evidence to support his contention , therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Relief denied.
: (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in over two years of service. Despite a service member’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. The Applicant was found guilty of violation of Article 112a. Additionally, the Applicant was found guilty at an earlier NJP for violating UCMJ Articles 81 and 107, both of which warranted a punitive or administrative discharge. However, his command allowed him to continue to serve. Even with further misconduct that warranted mandatory separation, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Relief denied.


: (Decisional) ( ) . The Applicant contends his discharge characterization of service is inequitable for the misconduct of drug abuse. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. The Applicant submitted a letter from an Air Force R eserve Judge Advocate General who contends that he never saw an Airman who was discharged with less than a General service characterization when the only allegation was drug abuse. While t hat may be true for the Air Force , in the Navy and Marine Corps, drug abuse violations, even if isolated, typically result in an Under Other Than Honorable Conditions characterization of service. In addition to violating UCMJ Article 112, the Applicant also violated Articles 81 and 107 (twice) . Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. 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.

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.

Pertinent Regulation/Law

 A . 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 .


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 | 2014_Marine | MD1401462

    Original file (MD1401462.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: Pertinent Regulation/Law A. Paragraph 6210, MISCONDUCT ,...

  • USMC | DRB | 2013_Marine | MD1301231

    Original file (MD1301231.rtf) Auto-classification: Denied

    of controlled substances)Awarded: Suspended: SCM:SPCM:CC: Retention Warning Counseling: 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...

  • NAVY | DRB | 2015_Navy | ND1500500

    Original file (ND1500500.rtf) Auto-classification: Denied

    Based on the Article 112a violation, processing for administrative separation is mandatory. 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 remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE). ” Additional Reviews : After a document review has been...

  • NAVY | DRB | 2009_Navy | ND0900354

    Original file (ND0900354.rtf) Auto-classification: Denied

    Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP): NONE Active: Period of Service Under Review: Date of Enlistment: 20030128 Age at Enlistment: Period of Enlistment: Years Extension Date of Discharge: 20040427 Highest Rank/Rate: ETSNLength of Service: Year Month(s) 00 Day(s) Education Level: AFQT: 74Evaluation Marks: Performance: 2.0 (1) Behavior: 2.0 (1) OTA: 2.00Awards and Decorations (per DD 214): Rifle...

  • NAVY | DRB | 2009_Navy | ND0900558

    Original file (ND0900558.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT Applicant’s Issues 1. 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 previous in-service misconduct was an aberration and not indicative of the member’s overall character.Besides the Applicants...

  • USMC | DRB | 2014_Marine | MD1400349

    Original file (MD1400349.rtf) Auto-classification: Denied

    The Applicant a pre-service drug waiver for using marijuana prior to entering the Marine Corps, acknowledged complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs on 02 June 2011.Based on the Article 112a violation, processing for administrative separation is mandatory. ” 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...

  • NAVY | DRB | 2010_Navy | ND1000798

    Original file (ND1000798.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, 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...

  • NAVY | DRB | 2010_Navy | ND1001183

    Original file (ND1001183.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: Pertinent Regulation/Law A. Even though he confessed to...

  • NAVY | DRB | 2008_Navy | ND0801741

    Original file (ND0801741.rtf) Auto-classification: Denied

    The Applicant contends he is entitled to a discharge upgrade due to his narrative reason being “ Commission of a Serious Offense” and his administrative separation board considered separation for “Drug abuse.” The record of evidence shows the Applicant waived his rights to an administrative separation board on 19 September 2005. Administrative separations are used to separate service member determined by their command’s to be unfit for further military service. The Board determined the...

  • NAVY | DRB | 2009_Navy | ND0901339

    Original file (ND0901339.doc) Auto-classification: Denied

    ex-SR, USN Current Discharge and Applicant’s Request Application Received: 20090421 Characterization of Service Received: Narrative Reason for Discharge: Authority for Discharge: MILPERSMAN 3630620 (DRUG ABUSE) Applicant’s Request: Characterization change to: Narrative Reason change to: Summary of Service Prior Service: Inactive: NONE Active: Period of Service Under Review: Date of Enlistment: 19940207 Age at Enlistment: Period of Enlistment: Years Date of Discharge: 19970731 Highest...