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NAVY | DRB | 2014_Navy | ND1400769
Original file (ND1400769.rtf) Auto-classification: Denied

ex-PSSN, USN
Current Discharge and Applicant’s Request
Application Received: 20140320
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: EAOS

Summary of Service

 Prior Service:
Inactive:         US N R (DEP)        20020702 - 20021007     Active:  

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20021008     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061004      Highest Rank/Rate: P S SN
Length of Service : Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:        AFQT: 36
Evaluation M arks:         Performance: 3.7 ( 4 )      Behavior: 3.7 ( 4 )        OTA: 3.07

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP:

- 20050525 :      Article (Absence without leave)
         Article (Failure to obey order or regulation)
         Article (Wrongful use or possession of a false or unauthorized military or official pass, permit, discharge certificate, or identification card)
         Awarded: Suspended:

SCM:     SPCM:    C C :     

Retention Warning Counseling :

         - 20050525 :                For NJP held on 20050525
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 :        

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 wants an upgrade f or employment opportunities and to be eligible for Department of Veterans Affairs (VA) education benefits.
2.       The Applicant contends the marijuana found in his vehicle was not his.
3 .       The Applicant contends he never used marijuana as proven by his negative drug urinalys e s.
4.       The Applicant contends his civilian conviction for marijuana possession was later expunged from his record.
5 .       The Applicant contends his service record warrants consideration for an upgrade , and he was separated four days before his End of Active Obligated Service (EAOS) .
 6.       The Applicant contends his post-service conduct warrants consideration for an upgrade.
Decision

Date : 20 1 4 0814            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 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 ( Failure to obey order or regulation ) , Article ( Absence without leave ), and Article ( Wrongful use or possession of a false or unauthorized military or official pass, permit, discharge certificate, or identification card ) . On 16 July 2005, the Applicant was arrested for possession of a controlled substance (marijuana) after his vehicle was stopped and searched by Navy security personnel. After the Applicant’s arrest, his on - base quarters was also searched and additional marijuana was found and taken as evidence by security personnel. The Applicant a pre-service drug waiver prior to entering the Navy. Based on the violation of the Navy’s zero-tolerance 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, submit a written statement , and request an administrative board . On 8 September 2006, an Administrative Separation Board determined by unanimous vote that a preponderance of the evidence supported the Applicant’s drug abuse and recommended the Applicant be administratively separated from the Navy with a General (Under Honorable Conditions) discharge for M isconduct ( D rug A buse). The Separation Authority concurred with the recommendations and discharged the Applicant on 4 October 2006.

: (Nondecisional) The Applicant wants an upgrade for employment opportunities and to be eligible for VA education benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant contends the marijuana found in his vehicle was not his. The record shows the Applicant made a written statement at the time of his arrest for drug possession admitting that he had participated in buying the marijuana and had shared in smoking the marijuana. In addition, a search of his base q uarters after the Applicant’s arrest also resulted in the seizure of a bag of marijuana from his room. The Applicant was convicted in civilian court of possession of marijuana in November 2005. In September 2006, an a dministrative b oard determined that a preponderance of evidence supported the charge against the Applicant of drug abuse. After a careful review of the Applicant’s record, the NDRB determined he was fortunate in receiving a lenient General discharge. Relief denied.



: (Decisional) ( ) . The Applicant contends he never used marijuana as proven by his negative drug urinalys e s. Although the Applicant was tested for drugs on a urinalysis test and did not produce positive results, the Applicant had already made a written statement admitting he used marijuana, and marijuana was found in his vehicle and in his room at base quarters. Therefore, the preponderance of evidence supported the Applicant’s possession and use of marijuana, and his discharge was warranted, proper, and equitable. Relief denied.

: (Decisional) ( ) . The Applicant contends his civilian conviction for marijuana possession was later expunged from his record. Having charges dismissed, or a conviction expunged , after discharge has no bearing on the fact that at the time of his separation, enough evidence existed to support and warrant his discharge. The Applicant was found with marijuana in his vehicle and in his room in base quarters and made a written statement at the time of his arrest admitting to using and buying marijuana. The Applicant’s command acted accordingly in processing him for administrative separation with full knowledge of this evidence and was within established guidelines and policy in doing so. Relief denied.

5 : (Decisional) ( ) . The Applicant contends his service record warrants consideration for an upgrade, and he was separated four days before his EAOS. Since t he Applicant was properly administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation , t he 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. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. Relief denied.

Issue 6: (Decisional) (Equity) RELIEF NOT WARRANTED. 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, training certificates, proof of volunteer activities, and character reference letters. 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 and drug policy violations. 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.


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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