ex-SA, USN
ND06-00988

Current Discharge and Applicant’s Request:

Application Received:  				20060725
Characterization of Service:			
Narrative Reason for Separation:			
Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	uss nassau (lha 4)

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				

Decision:

Date of Decision:					20070608
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
 (BCD only) The Board found that clemency was: 	

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

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20031017-20031104 COG
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				20031105
Years Contracted:  				;        
Date of Discharge:				20050617
Length of Service:				01  Yrs  07  Mos  13  Days
Time Lost During This Period:			61       
						NONE        
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						46
Highest Rate/Rank:				SN

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			2.0 (2)  2.0 (2)  2.17
	
Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL

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

20050321:	Applicant arrested for simple possession of MDMA or ecstasy and parking in a handicapped parking.  Charges pending in Cabarrus County, North Carolina.  
	[Extracted from Commanding Officer, USS NASSAU ltr of 20050623].

20050519:	NJP for violation(s) of UCMJ:
	Article 86:  Unauthorized absence from 20050401 until 20050504, 20050308 until 20050331, 20050304 until 20050307, and leaving while in a duty status.
	Article 87:  Missed movement on 20050321 and 20050422.
	Article 92:  Dereliction of duty by failing to notify the chain of command of a court date on 20050307. 
	Article 107: False official statement made to OOD on or about 20050304.
                              Award:  Reduction to E-2, Forfeiture of $722 for 2 months, restriction and extra duty for 45 days.
   	No indication of appeal in the record.

Elements of Discharge: [INVOLUNTARY]

Discharge Process:				
Date Notified:					20050520
Reason for Discharge				  due to:  
						  due to:  
Least Favorable Characterization:			
Record Supports Narrative Reason:			
Date Applicant Responded to Notification:		20050520
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       

Recommendation of Commanding Officer (date):	 
Separation Authority (date):			COMMANDER, AMPHIBIOUS GROUP TWO (20050616)
	Reason for discharge directed:		MISCONDUCT – DRUG ABUSE
	Characterization directed:			
Date Applicant Discharged:			20050617

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:				7
	Other Period of Service:				     
       Related to Post-Service Period:
	Community Service:				     
	Education:					     
	Employment:					     
	Health/Medical:					     
	Character Statements:				     
	Criminal Records Checks:				     
	Additional Statements from Applicant:		2
        Other Documentation	 (Describe Below)		2

        Total Number of Pages:				11

       Description of Other Documentation:
       Letter from Congressman, Letter from Attorney, 

Applicant’s Issues as Summarized by the Board:
1.  Request a chance to re-enter the Navy.
2.  Did not use drugs and civilian charges dismissed.
3.  Navy did not provide support for personal problems.

Issue 1 - The Board determined that  which can form the basis of relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Decisional Issues:

Issue 2  ():   There is credible evidence in the record that the Applicant was in possession of illegal drugs.  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.  The Applicant was provided the opportunity to consult with counsel, offer rebuttal statements and/or challenge the evidence of possession before an administrative discharge board.  The Applicant waived these rights and accepted the risk that the Separation Authority might find against him.  The fact that a civilian criminal allegation may have been dismissed does not necessarily mean that the factual reason for the Applicant’s discharge did not exist and does not, per regulations, preclude administrative separation.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other narrative reason for separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief is denied.  

Issue 3 ():  The Applicant’s allegations, that he was denied assistance and counseling for his personal problems, do not refute the presumption of regularity in this case.  There is no evidence in the record, or reason to assume, that the Applicant’s chain of command acted in any improper manner in assessing his performance, conduct and service.  In addition to the reason for discharge, the Applicant’s service was marred by the award of nonjudicial punishment (NJP) for multiple violations of the UCMJ, Articles 86, 87, 92 and 107.  The Board advises the Applicant that violations of Articles 86, 87, 92 and 107 are considered serious offenses for which a punitive discharge is authorized if adjudged at a special or general court-martial.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.  

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, 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.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 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.

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, Articles 86 (Absence without leave for a period greater than 30 days), 87 (Missing movement), 92 (Willful dereliction of duty), and 107 (False official statements). 

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