ex-FC1, USN
ND06-00965

Current Discharge and Applicant’s Request:

Application Received:  				20060711
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				
Discharge Authority:				milpersman 1910-146
Last Duty Assignment/Command at Discharge:	TRASUPPCEN HAMPTON ROADS VIRGINIA BEACH, VA

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					 REQUESTED

Decision:

Date of Decision:					20070426     
The Discharge shall remain:			
						misconduct
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
 
Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19900515 - 19900822
Active:   USN		               		19900823 - 19940821
	USN					19940822 - 19990930
Period of Service Under Review:
Date of Enlistment:  				19991001
Years Contracted:  				;        
Date of Discharge:				20040813
Length of Service:				04  Yrs  10  Mos  13  Days
Time Lost During This Period:			      
						     
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						82
Highest Rate/Rank:				FC1

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			3.8 (4)	2.3 (4)	3.43
	
Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL (2); NAVY GOOD CONDUCT MEDAL (4); FLAG LETTER OF COMMENDATION; NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (2); SEA SERVICE DEPLOYMENT RIBBON (3), SOUTHWEST ASIA SERVICE MEDAL; MERITORIOUS UNIT COMMENDATION; NAVY "E" RIBBON; MARKSMANSHIP RIFLEMAN RIBBON; EXPERT PISTOL SHOT MEDAL.

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20030326:	Report and Disposition of Offenses:  Charge VUCMJ: Article 112a:  Wrongful use of controlled substance.  Specification 1: On or about 20040322, wrongfully use amphetamine.  Specification 2: On or about 20040322, wrongfully use methamphetamines.

20030329:	Applicant demanded trial by court-martial in lieu of nonjudicial punishment.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20040729:	Medical evaluation found applicant not dependent on drugs or alcohol. 	
	[Medical record not available.  Extracted from Commanding Officer’s letter dated 20040803.]

Elements of Discharge: 

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURE
Date Notified:					20040429
Reason(s):					MISCONDUCT DUE TO 
Least Favorable Characterization:			
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		20040504
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) in lieu of board	

Administrative Board
	Board Date:				20040616
	Vote/Finding:				3 – 0/ - 	
	Vote/Recommendation:			3 – 0/SEPARATION
						3 – 0/UNDER OTHER THAN HONORABLE CONDITIONS	

Recommendation of Commanding Officer (date):	  (20040803)
Discharge directed by (date):			Commander, Naval Personnel Development Command (20040803)
Narrative reason directed:				misconduct
Characterization of directed:			 
Date Applicant Discharged:			20040813 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				82
	Other Period of Service:				15
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				3
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		2

        Total Number of Pages:				102

       Description of Other Documentation:
       Navy Times 2002 Article (2 pages)

Discussion

Propriety and Equity
There is a presumption of regularity in the conduct of Government affairs.  This presumption will be applied in any review 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, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Applicant’s Issues (as summarized by the Board):
1.  Did not commit misconduct for which discharged.

Acceptance of Applicant’s Issues:
The Board accepted Issue 1 for consideration.  

Issue 1 (Propriety).  The Applicant contends that he did not knowingly take any illegal drugs.  The Board noted that the record did not contain a copy of the Drug Lab message reporting the results of the Applicant’s urinalysis; however, references in the record to the Applicant’s urinalysis results and the Applicant’s petition raising the possibility of a “false positive” indicate that the there is credible evidence demonstrating that the Applicant’s urine tested positive for methamphetamine and amphetamine in concentrations sufficient to conclude that the Applicant used methamphetamine.  The Board carefully considered the Applicant’s contention and evidence that his use was unknowing, and concluded that the evidence, taken as a whole, was insufficient to overcome the presumption that the Applicant’s discharge was proper and equitable.  

Minority Opinion

None.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 28 April 2005, Article 1910-146 (formerly 3630620), 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.

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.  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