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NAVY | DRB | 2013_Navy | ND1301807
Original file (ND1301807.rtf) Auto-classification: Denied

ex-MMFN, USN
Current Discharge and Applicant’s Request
Application Received: 20130911
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)        20011220 - 20020220     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20020221     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20031029      Highest Rank/Rate: MMFN
Length of Service : Y ear M onth s 14 D a ys
Education Level: Non Traditional Education      AFQT: 62
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      GWOTSM

Period of UA : 20030519-20030613, 2 5 days. C ONF :

NJP:

- 20030123 :      Article (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer , 5 specifications )
         Article (Failure to obey order or regulation)
         Awarded: CC Suspended: ($200.00)

SCM:     SPCM:    C C :

Retention Warning Counseling:

- 20030123 :      For violation of UCMJ Article 91, disrespect toward a petty officer (5 specs) on 20021212 and 20030123, Article 92 dereliction of duty on 20030111 , and Article 128, simple assault on 20030123

NDRB Documentary Review Conducted (date):        20060426
NDRB Documentary Review Docket Number:   ND06-00685
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.








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 33, effective 22 August 2002 until 28 April 2005, 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 his misconduct drug abuse was never proven.
2.       The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date: 20 1 4 0714             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. Th e 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 NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Insubordinate conduct toward warrant officer, noncommissioned officer, or petty office r, 5 specifications) and Arti cle ( Failure to obey order or regulation ) . The Applicants record of service also documents a period of unauthorized absence of 25 days and a positive drug screen for THC (35 ng/ml as evidenced by NAVDRUGLAB msg dtg 232320z JUN 2003). Bas ed on the violation of the Navy’s Drug Policy , processing for administ rative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant right to consult with a qualified coun sel but exercised his right to submit a written statement for consideration by the S eparation Authority.

: (Decisional) ( ) . The Applicant contends his misconduct drug abuse was never proven. The Applicant was initially administered a drug screening urinalysis on 13 June 2003 after returning from a 25 - day period of unauthorized absence. Due to an unspecified administrative oversight, the command directed a second drug screening urinalysis that was conducted on 16 June 2003. The dru g screening urinalysis conducted on 16 June 2003 returned positive for THC ( 35 ng/ml ) . The Applic ant contends that since the drug screening urin alysis was obtained improperly, his separation due to drug abuse is improper and his discharge characterization of General (Under Honorable Conditions) is inequitable. As the basis of this contention, the Applicant cites the Norfolk T ransient Personnel Unit (T PU ) Commanding Officer’s letter of 25 July 2003 that states the Applicant’s NJP of 25 July 2003 is set aside because the urinalysis of 16 June 2003 was obtained improperly. Subsequent to setting aside the Applicant’ s NJP, the Commanding Officer , TPU , Norfolk processed the Applicant for administrative separation and recommended that the Applicant be separated with a General (Under Honorable Conditions) characterization of service based on drug abuse . Per Article 1910- 146 of the Naval Military Personnel Manual, r esults of a command - d irected urinalysis are not usable in disciplinary proceedings or as a basis for awarding an Under Other Than Honorable Conditions discharge characterization but are usable as a basis for separation. As such, the NDRB determined the Applicant’s command acted appropriately in setting aside the Applicant’s NJP and also acted appropriately by processing the Applicant for administrative separation. The NDRB determined that the Commanding Officer’s letter of 25 July 2003, which set aside the Applicant’s NJP, does not invalidate the Applicant’s positive drug screening for the purpose of administrative separation . Furthermore, 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 his 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, evidence that he received an Associate in Applied Science degree from Berkeley College and is pursuing a bachelor’s degree, and three personal references. C ompletion 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. The Board determined the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The characterization of service received was appropriate considering the length of service and UCMJ violations. 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 . The Applicant is not eligible for further reviews from the NDRB. The Applicant may petition 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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