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NAVY | DRB | 2014_Navy | ND1400524
Original file (ND1400524.rtf) Auto-classification: Denied

ex-YNSR, USN
Current Discharge and Applicant’s Request
Application Received: 20140207
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)        19971125 - 19971216     Active:   19971217 - 20010401 HON

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20010402     Age at Enlistment:
Period of E nlistment : Years 14 MONTHS Extension
Date of Discharge: 20050822      Highest Rank/Rate: YN2
Length of Service : Y ear ( s ) M onth ( s ) 21 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 4.0 ( 5 )      Behavior: 4.0 ( 5 )        OTA: 4.16

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

Period of UA :

NJP:     SPCM:    CC:      Retention Warning Counseling:

SCM:

- 200 5 0605 :      Article (Wrongful use, possession, etc. of controlled substances, M arijuana , 92 ng/ml )
         Sentence:

- 200 5 0714:      Article (Wrongful use, possession, etc. of controlled substances, Marijuana , 44 ng/ml )
          Sentence:

NDRB Documentary Review Conducted (date):        20100222
NDRB Documentary Review Docket Number:   ND09-01994
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:        


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

                  Applicant’s Issues
1.       The Applicant contends he had a lack of representation.
2.       The Applicant contends his misconduct was an isolated incident in 7 ½ years of service as an outstanding Sailor.
3 .       The Applicant contends he was not guilty at his second S ummary C ourt- M artial , and it was a case of double jeopardy.
4 .       The Applicant contends his post-service conduct warrants an upgrade.

Decision

Date : 20 1 4 0331             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 Applicant’s record of service in his second enlistment included for of the UCMJ : Article 112a (Wrongful use, possession, etc. of controlled substances, 2 specifications : Marijuana , 92 ng/ml and Marijuana , 44 ng/ml). The Applicant a pre-service drug waiver for using marijuana 30 times prior to entering the Navy. 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 had a lack of representation. The record contained no evidence of any wrongdoing by the Applicant’s command or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The record clearly shows the Applicant was found guilty at two S ummary C ourt s - M artial for the wrongful use of marijuana , and the Applicant subsequently waived his rights to consult with counsel, submit a written statement, and appear before an administrative separation board. Further, the Applicant stated at his personal hearing that he used marijuana to be able to leave the Navy early. The NDRB determined the Applicant’s discharge was proper , and he received full due process . Relief denied.

Issues 2-3 : (Decisional) ( ) . The Applicant contends his misconduct was an isolated incident in 7 ½ years of service as an outstanding Sailor. The Applicant further stated that he was not guilty at his second S ummary C ourt- M artial , and it was a case of double jeopardy. The Applicant received an Honorable characterization of service for his first enlistment from December 1997 to April 2001. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his second enlistment, he was found guilty of violating UCMJ Article 112a at two Summary Courts-Martial. The Applicant stated at his personal hearing that he o nly used marijuana once while in service. The record clearly shows the Applicant had a pre-service drug waiver for using marijuana 30 times and was found guilty at two S ummary C ourts- M artial for the wrongful use of marijuana. I f the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. Instead, t he record of trial for his second S ummary C ourt- M artial shows the Applicant did not object t o trial by S ummary C ourt- M artial. The record also shows the Applicant waived his right to an administrative separation board. 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 . However, even if Applicant could prove he was innocent of the second incident of using marijuana, the Applicant still pled guilty at his first S ummary C ourt- M artial to the wrongful use of marijuana. Certain serious offenses warrant separation from the service 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 command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. Relief denied.

: (Decisional) ( ) . The Applicant contends his post-service conduct warrants 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 testimony , evidence of his security clearance, employee evaluations, t wo employe r references , and a copy of a Bachelor of Science Degree in Civil Engineering from Old Dominion University (ODU). The NDRB called the Registrar at ODU, who indicated that the Applicant never received a Bachelors Degree from ODU and only attended ODU for one semester in 2011. P ost-service conduct alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. The Board determined the documentation submitted by the Applicant along with his testimony at the personal appearance hearing does not warrant relief. The characterization of service received was appropriate considering the length of service and UCMJ violation s . 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. The Applicant is directed to the Addendum for additional information.
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 .


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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