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NAVY | DRB | 2014_Navy | ND1401117
Original file (ND1401117.rtf) Auto-classification: Denied

ex-FA, USN
Current Discharge and Applicant’s Request
Application Received: 20140528
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:        USNR (DEP)       20000531 - 20000605     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
 Date of Current Enlistment: 20000606     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020503      Highest Rank/Rate: FN
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         N ot Found in Record (N FIR )

Awards and Decorations (per DD 214):     NFIR

Period of UA : 20020323 - 20020502 , 3 9 days      CONF: NONE

NJP:

- 20010322:      Article 123 (Forgery, writing bad checks)
         Awarded: NFIR Suspended: NFIR
         [Extracted from retention warning dated 20010322, no record of proceedings in official file]
- 20020314 :      Article (Wrongful use, possession, etc. of controlled substances , 4 s pecifications )
         Specification 1: On or about 13 March 2002, w rongfully possessed some amount of Mari juana aboard the USS BLUE RIDGE
         Specification 2: On or about 5 February 2002, used Marijuana (THC 31 ng/mL)
         Specification 3: On or about February 2002 , wrongfully used Marijuana aboard a US Vessel used by the armed forces, or under the control of the armed forces, to wit: USS BLUE RIDGE
          Specifi cation 4: On or about 5 February 2002, wrongfully introduced some amount of Marijuana onto a vessel, aircraft , or vehicle used by the armed forces or under the control of the armed forces
         Awarded: Suspended:

SCM:     SPCM:    CC:

Retention Warning Counseling:

- 20010322 :      For violation of Article 123 (NJP 20010322)





Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         Block 4a, Grade, Rank, or Rate, should read: “FA”
 Block 4b, Pay grade, should read: “ E2 ”
          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
 “ MISCONDUCT ”
The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, that the DD 214 be corrected as appropriate.
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 16 July 2001 until 21 August 2002, 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 he was under a lot of stress, used marijuana to cope, and was not familiar with addictive behavior and characteristics.
 2 . The Applicant contends his discharge was based solely on marijuana.
3 .       The Applicant contends he was told that he could go before a board of chiefs and be transferred to another ship because his service was very good, but he had a pregnant female in Australia and so he was discharged in that country without a military escort.

Decision

Date: 20 1 4 0826            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 included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article ( Forgery , writing bad checks ) and Article ( Wrongful use, possession, etc. of controlled substances , ) . The Applicant a pre-service drug waiver p rior 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 administrative board procedure, the Applicant rights to consult with a qualified coun sel, submit a written statement , and request an administrative board . The Applicant was discharged in absentia after he went into a 39-day period of unauthorized absence.

: (Decisional) ( ) . The Applicant contends he was under a lot of stress, used marijuana to cope, and was not familiar with addictive behavior and characteristics. He also contends his discharge was based solely on marijuana. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable or General discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo stress during their enlistments, such as the Navy Chaplain, Medical or Mental Health professionals, or Family Advocacy Programs. Turning to the use of an illegal substance to relieve stress was not a viable option. 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, qualifications, 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 he was told that he could go before a board of chiefs and be transferred to another ship because his service was very good, but he had a pregnant female in Australia and so he was discharged in that country without a military escort. After being found guilty of 4 specifications of violating UCMJ Article 112a at NJP, his command initiated mandatory processing for administrative separation. With his earlier forgery misconduct and retention warning, the Applicant met the requirements to be administratively separated for Misconduct (Drug Abuse), Misconduct (Serious Offense), and Misconduct (Pattern of Misconduct). Based upon the Applicant’s frequent and serious misconduct, his commanding officer recommended that he receive an Under Other Than Honorable Conditions characterization of service. As a result, the Applicant was afforded the rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, and to appear before an administrative separation board to

present his case for retention or to prove that he did not commit misconduct. This board was not offered because his service was very good. Rather, the board was offered as part of his rights because his misconduct was so egregious. Further, it was highly unlikely that he would have been transferred to another ship, since Misconduct (Drug Abuse) almost always results in an unfavorable discharge. Finally, when faced with discharge, the Applicant went into an unauthorized absence period that only ended when the Navy discharged him in absentia. After a complete review of the records, the NDRB determined his discharge was warranted, proper, and equitable. 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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