ex-YNSN, USN
ND06-00884

Current Discharge and Applicant’s Request

Application Received:  20060620 	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 3630620

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:					            Representative:  DISABLED AMERICAN VETERANS
1.  DD 214 fails to distinguish between honorable period of service and period characterized as under other than honorable conditions.
2.  Post-service conduct.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20070826 				  		       Washington D.C. 

Applicant Testified:  		Applicant Available for Questions:  	Witnesses:   	Observers:        
Discussion

Issue 1.  This issue is not an issue of propriety or equity regarding the discharge.  However, the Board concurred with the Applicant that his DD 214 inaccurately characterized his entire service from 19880815 – 1993073 as under other than honorable conditions and will recommend an administrative correction as indicated below.

Issue 2 ().  There is credible evidence in the record that the Applicant used illegal drugs, and the Applicant candidly acknowledged his use and possession of marijuana.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity during the discharge process.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service

Prior Service:
Inactive: USNR (ActMar)	19870724 - 19880714  		Active:   R (ActMar)	19880815 - 19910702  
Period of Service Under Review:
Date of Enlistment: 19910703	Years Contracted:  ; Extension:    	Date of Discharge:  19930730
Length of Service:  02  Yrs  00  Mths  28  Dys	Lost Time:  Days UA:  1	Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  39	Highest Rank/Rate:  YN3
Evaluation marks (# of occasions):	Performance:  3.9(4)	Behavior:  3.6(4)	 OTA:  3.90 
Awards and Decorations (per DD 214):  First Good Conduct Award for period ending 92JUL16, Letter of Commendation (3rd), Marksman .45 Caliber Pistol, National Defense Service Medal

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19910703:	Reenlisted this date for a term of 5 years.

19921009:	Military working dog responded to Applicant’s car during random inspection.  Applicant consented to search of vehicle, person and room.  Small seed that appeared to be marijuana seized from Applicant’s car, and small plastic bag containing approximately 1 gram of suspected marijuana seized from Applicant’s room.  

19921009:	Applicant provided voluntary statement claiming that a friend had left the bag of marijuana in Applicant’s car and that Applicant intended to return to the friend but had not yet done so.  Applicant also admitted having smoked marijuana approximately 3 weeks prior to this date.

19930622:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of drug abuse as evidenced by NIS Report Case Control No. 17NOV92-06RL-0532-7NCR.

19930622:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

19930624:	Medical officer examination did not reveal evidence of drug addiction and or alcohol dependency.

19930625:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.

19930630:	Drug and Alcohol Abuse Report:  Marijuana possession, ashore on duty.  Abuse denied.  Method of identification:  Military police 931009.  Clinical screener recommended Level I treatment.  Physician found Applicant not dependent and recommended Level I treatment.  Commanding Officer recommended separation.  Comments:  Member apprehended for possession of marijuana on station.  DAAR submitted late due to a delay in administrative processing.  Member recommended for OTH discharge.

19930706*:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
	[*Document indicates date of “6 JUN 93;” appears to be clerical error.] 

19930713:	Applicant to unauthorized absence at 0730.

19930714:	Applicant from unauthorized absence at 0830 (1 day/surrendered).

19930723:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

19951128:	NDRB conducted documentary review of Applicant’s discharge, docket number ND95-01391.  Discharge determined to be proper and equitable; relief not warranted.

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    Other Documentation (Describe)       

Pertinent Regulation/Law

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, Wrongful use, possession, etc., of controlled substances.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  
 
Board Membership:  The names and votes of the members of the 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