ex-HN, USN

Current Discharge and Applicant’s Request


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

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20110830 - 20120416     Active: 

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20120417    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20140828     Highest Rank/Rate: HN
Length of Service: Year(s) Month(s) 12 Day(s)
Education Level:        AFQT: 70
Evaluation Marks:        Performance: NFIR        Behavior: NFIR  OTA: NFIR

Awards and Decorations (per DD 214):     Pistol

Periods of UA/CONF:

NJP:

- 20130307:      Article (Failure to obey order or regulation)
         Article (Wrongful use, possession, etc. of controlled substances)
         Awarded: Suspended:

SCM:

SPCM:

CIVIL ARREST:

CC:

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

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

         “UNDER HONORABLE CONDITIONS (GENERAL)”
        
The NDRB will recommend to the Commander, Navy Personnel Command, 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 29, effective 10 November 2009 until Present, 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 to reenlist.
2.       The Applicant contends his discharge is improper due to improprieties in the discharge process:
         a.) A confirmation urinalysis test was not conducted.
         b.) Dates in witness testimony regarding allegations are not consistent.
         c.) Another shipmate involved in the allegations was not charged and did not receive any disciplinary actions.
         d.) Timeliness in the administrative separation process was not adhered to.
         e.) Senior staff and Command had recommended that the Applicant be retained in the Navy.
3.       The Applicant contends his discharge is inequitable because his whole service record of performance and conduct was not taken into account.

Decision

Date: 20150311            Location: Washington D.C.        Representation:

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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The 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 NAVPERS 1070/613 (Page 13) warning, and for of the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation; ), and Article (Wrongful use, possession, etc. of controlled substances; Oxymorphone). The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. Although the Administrative Board package was not found in the record, the NDRB presumes that a Board determined a preponderance of evidence proved the Applicant’s drug abuse, and he was discharged on 28 August 2014.

: (Nondecisional) The Applicant wants to reenlist. 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.

: (Decisional) () . The Applicant contends his discharge is improper due to improprieties in the discharge process:
         a.) A confirmation urinalysis test was not conducted. The Applicant contends his positive urinalysis result is invalid, because he was not given a second or third drug test as required. The “three-test requirement” is part of the procedure conducted by the Naval Drug Screening Laboratory (NDSL) on a positive sample. The NDSL goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released. There is no requirement for a servicemember to receive additional tests after a positive result. Based on the NDSL message, the NDRB determined the Applicant’s urinalysis was not a false positive and that his discharge was proper and equitable. Relief denied.

         b.) Dates in witness testimony regarding allegations are not consistent. The Applicant tested positive for a controlled substance (Oxymorphone) on a command urinalysis test. In order to meet the standards of proof for an administrative separation, the Separation Authority needs only a preponderance of evidence that proves the reason for separation. The Applicant was found guilty at NJP for violation of Article 112a of the UCMJ. The Separation Authority determined that a preponderance of evidence proved that the Applicant wrongfully took a prescription medication that was not his. The inconsistencies in witness testimony did not disprove the Applicant’s positive urinalysis test, and his own admission to having used a prescription medication that was not his. Relief denied.
         c.) Another shipmate involved in the allegations was not charged and did not receive any disciplinary actions. The NDRB has no authority over disciplinary actions taken by a Commanding Officer to ensure the good order and discipline of his unit, and this issue has no relevance in the administrative separation for drug abuse of the Applicant. 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. 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. Relief denied.
         d.) Timeliness in the administrative separation process was not adhered to. Although every effort should be made to adhere to established time goals for processing administrative separations, failure to meet these goals is not a bar to separation, or to type of discharge characterization of service. Relief denied.
         e.) Senior staff and Command had recommended that the Applicant be retained in the Navy. Even though members of the Applicant’s chain of command may have recommended that he be retained in the Navy, the Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence, and is the finale authority for separation. There is no provisional guarantee that a servicemember will receive anything that a local commanding officer recommends. Administrative separation processing is mandatory for instances of drug abuse and a local commander’s retention warning is considered to be invalid and will not preclude separation in mandatory processing for drug abuse cases. Relief denied.

: (Decisional) () . The Applicant contends his discharge is inequitable because his whole service record of performance and conduct was not taken into account. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, 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. However, his command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. 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 summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE).

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