ex-ADAN, USN
ND06-01069

Current Discharge and Applicant’s Request:

Application Received:  				20060810
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	VFA 201 NAS JRB FORT WORTH TX

Applicant’s Request:
	Narrative Reason change to:		NONE REQUESTED     
	Characterization change to:		
	Review Requested:			
Representation:  					
Issues (as summarized by NDRB):			1.  PUNISHED MORE HARSHLY THAN SHIPMATES
						2.  ONE INCIDENT

Decision:

Date of Decision:					20070719
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:	

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   - .

Summary of Service:
	
Prior Service:
Inactive: USNR (DEP)				19960928 - 19970722 
Active:   USNR		               		19970723 - 20020521 
Period of Service Under Review:
Date of Enlistment:  				20020522
Years Contracted:  				;        
Date of Discharge:				20050201
Length of Service:				02  Yrs  8  Mos  11  Days
Time Lost During This Period:			27
Days Unauthorized Absence:			27
Days Confinement:				NONE

Education Level:  				
Age at this Enlistment:  				
AFQT:  						51
Highest Rate/Rank:				AD2

Performance Evaluation Averages (number of marks):
Performance:					3.7 (3)
Behavior:					2.7 (3)
OTA:						3.09

Awards and Decorations (as listed on the DD Form 214):
GOOD CONDUCT MEDAL(2); NATIONAL DEFENSE SERVICE MEDAL

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

20041004:	NJP for violation of UCMJ:
	Article 112a:  Wrongful use of a controlled substance.
	Award:  Forfeiture of ½month’s pay for 2 months, reduction to E-3.
	No indication of appeal in the record.

20041004:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to wrongful use of a controlled substance.

20041005:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

20041117:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to wrongful use of a controlled substance, that such misconduct warranted separation, unanimously recommended discharge and by a vote of 2-1 recommended the Applicants characterization of service as under other than honorable conditions.

20041203:	Commanding Officer, Strike Fighter Squadron Two Zero One, recommended to Commander, Navy Region South that the Applicant be discharged under other than honorable conditions by reason of misconduct due to wrongful use of a controlled substance.  Commanding Officer’s comments:  “...AD3 S_ tested positive for drug use on a sample collected 7 September 2004 and certified on 17 September 2004.  AD3 S_ has no potential for further useful Naval service and I request that he be discharged with a characterization of Other than Honorable Conditions and a Reenlistment Code of RE-4.”

20041214:	Commander, Navy Region South, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the wrongful use of a controlled substance.

20050211:	Commanding Officer, Strike Fighter Squadron Two Zero One, forwarded the administrative discharge package to Commander, Naval Region South stating that member was discharged in absentia based on his unauthorized absence beginning on 20050105.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20041004
Reason for Discharge				WRONGFUL USE OF A CONTROLLED SUBSTANCE
Least Favorable Characterization:			
Date Applicant Responded to Notification:		20041005
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statements			       
GCMCA Review				

Administrative Board Date:			20041103
Findings and Recommendations:			
Reason for Discharge:			WRONGFUL USE OF CONTROLLED SUBSTANCE - 3 TO 0
Separation Warranted:			; Vote:  3 TO 0
Recommendation RE Characterization:	 - 2 TO 1
						
Recommendation of Commanding Officer (date):	  20041203
Discharge directed by (date):			COMMANDER, NAVY REGION SOUTH
Narrative reason directed:				
Characterization directed:				 
Date Applicant Discharged:			20050201 IN ABSENTIA

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 Under Review:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				1

Discussion

Decisional Issues:

Issue 1:  Punished more harshly than shipmates ().  The Applicant contends that his discharge was inequitable because his shipmates were punished less harshly for similar misconduct.  The Board 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.  The official record supports the conclusion that the Applicant committed misconduct due to wrongful use of a controlled substance, that separation from the Naval service was appropriate, the separation was conducted in strict compliance with MILPERSMAN 15560C and that service characterization of under other than honorable conditions was warranted.  

Issue 2:  One incident in over 60 months of honorable service ().  The Applicant states his discharge was based on one isolated incident.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The record documents the Applicant’s in-service use of illegal drugs, which is the basis for his discharge. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.

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), re-issued October 2002, effective 22 August 2002 until 
28 April 2005, 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.

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