ex-ENS, USN

Current Discharge and Applicant’s Request


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

Summary of Service

Prior Service:
Inactive: USN (ROTC) 20080825-20130506 COG

Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Appointment: 20130507   Age:
Years Contracted: Indefinite
Date of Discharge: 20140731     Highest Rank/Rate: ENS
Length of Service: Year(s) Month(s) 24 Day(s)
Education Level:        AFQT: NFIR
Officer’s Fitness reports: Not Available

Awards and Decorations (per DD 214):    

Periods of UA/CONF:

NJP:

- 20131011:      Article
         Article 112a (Wrongful use, possession, etc., of controlled substances)
         Article 133 (Conduct unbecoming an officer and a gentleman) 2 specifications.
         Specification 1: On or about 20130730 wrongfully and dishonorably was found with drug paraphernalia to manufacture psychedelic mushrooms.
         Specification 2: On or about 20130727-28 wrongfully and dishonorably attempted to procure ecstasy with the intent to distribute.
         Awarded:        Suspended: NONE

SCM:     SPCM:    CC:      Retention Warning Counseling:

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. Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 the complete openness and honesty he displayed during and after the investigation is indicative of his character, his morals, and the values he holds. He feels the actions he took to notify his command should be taken into consideration when determining the status of his separation.
2.       The Applicant contends that the evidence and sworn statement included in the investigation were misconstrued to conclude that he attempted to procure ecstasy for himself and a female friend while in the Navy. The Applicant further contends that while he had a discussion concerning illegal drugs and their uses on the weekend in question that he never intended to procure any such substance while part of the armed forces.
3.       The Applicant contends his decision to acquire the materials necessary for the manufacturing process of the substance in question was made with the intent to provide a buffer of sorts before decisive action was taken. He contends that he had never determined that he would complete the manufacturing process of the substance in question or that he wanted to ingest the substance. He further contends that he has never failed a drug test nor has use ever used the substances in question.

Decision

Date: 20150319            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 for of the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation, ), Article (Wrongful use, possession, etc., of controlled substances, ), and Article 133 (Conduct unbecoming an officer and a gentleman, ). The Applicant a pre-service drug waiver for using marijuana prior to entering the Navy; however, the investigation into his illegal drug manufacture revealed that he had used marijuana an unspecified number of times while attending college. Based on the Article 112a violation, processing for administrative separation is mandatory. The NDRB did not have the Applicant’s separation proceedings beyond his report of NJP and his Commanding Officer’s recommendation that he show cause for retention in the naval service before a board of inquiry. The NDRB was unable to determine whether or not the Applicant acknowledged his rights, waived his right to a board of inquiry, or submitted a qualified resignation request.

: (Decisional) () . The Applicant contends the complete openness and honesty he displayed during and after the investigation is indicative of his character, his morals, and the values he holds. He feels the actions he took to notify his command should be taken into consideration when determining the status of his separation. The record shows the Applicant’s involvement with illegal substances was reported upon his discovery attempting to manufacture hallucinogens by his roommate and his roommate’s subsequent reporting of this attempted manufacture to local law enforcement personnel. Given the Navy’s zero tolerance drug policy and the evidence contained both within the record and submitted by the Applicant, the NDRB finds this issue to be non-determinative. Relief denied.

: (Decisional) () . The Applicant contends that the evidence and sworn statement included in the investigation were misconstrued to conclude that he attempted to procure ecstasy for himself and a female friend while in the Navy. The Applicant further contends that while he had a discussion concerning illegal drugs and their uses on the weekend in question that he never intended to procure any such substance while part of the armed forces. The record of evidence clearly shows the Applicant waived his rights to trial by court-martial. If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made. During a trial or board of inquiry, he would have had the opportunity to mount a defense against the charges. 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. Relief denied.

: (Decisional) () . The Applicant contends his decision to acquire the materials necessary for the manufacturing process of the substance in question was made with the intent to provide a buffer of sorts before decisive action was taken. He contends that he had never determined that he would complete the manufacturing process of the substance in question or that he wanted to ingest the substance. He further contends that he has never failed a drug test nor has use ever used the substances in question. The intent to manufacture substances that are considered illegal or controlled substances for the intention for getting high or psychotropic effects is a violation of SECNAVINST 5300.28D (Military Substance Abuse Prevention and Control); which requires, at a minimum, mandatory processing for an administrative separation. There is no requirement for a servicemember in physical custody of illegal drugs, controlled substances, or the materials required and organized for manufacturing such substances to fail a urinalysis in order to be prosecuted for violation of Article 112a of the UCMJ. Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade 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.

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 OTHER THAN HONORABLE CONDITIONS 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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