ex-SK3, USN-R
ND06-01081

Current Discharge and Applicant’s Request:

Application Received:  				20060815
Narrative Reason for Separation:			MISCONDUCT due to 
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	NAVAL RESERVE CENTER nEW oRLEANS LOUISIANA

Applicant’s Request:
	Narrative Reason change to:		None Requested
	Characterization change to:		
	Review Requested:			
Representation:  					
	Issues (as summarized by NDRB):		1.  Re-Enlist
						2.  Good Sailor
						3.  Didn’t use drugs

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:  					NONE
Active:    					NONE
Period of Service Under Review:
Date of Enlistment:  				20000330
Years Contracted:  				 YRS
Date of Discharge:				20040823
Length of Service:				04  Yrs 04  Mos 24  Days
Time Lost During This Period:			

Education Level:  				
Age at this Enlistment:  				
AFQT:  						32
Highest Rate/Rank:				SK3

Performance Evaluation Averages (number of marks):
Performance:					3.4 (5)
Behavior:					3.2 (5)
OTA:						3.33

Awards and Decorations (as listed on the DD Form 214):
NONE

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

20040721:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20040716, tested positive for cocaine.

20040822:	Applicant notified (via NAVPERS 1910/32) of his intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) for misconduct due to drug abuse.

20040822:	Applicant advised of rights and having elected not to consult with counsel, elected the right to submit a statement to the separation authority and to obtain copies of the documents used to support the basis for the separation.

20040823:	Applicant discharged from Naval Reserve by reason of misconduct due to drug abuse with a characterization of service as under other than honorable conditions.

20040823:	Commanding Officer, Naval Reserve Center New Orleans, forwarded the Applicant’s administrative discharge package to Commander Naval Personnel. 

20041019:	Commander Naval Personnel Command message to Naval Reserve Center New Orleans, members administrative separation request is approved despite the following discrepancies:
	A.  Applicant was notified that reason for processing was unsatisfactory participation MPM 1910-158 vice misconduct drug abuse MPM 1910-146.
	B: Applicant was notified utilizing notification procedures NAVPERS 1910/32 vice administrative board procedures 1910/31.  All cases involving positive urinalysis must be processed utilizing admin board procedures with other than honorable (OTH) at lease least favorable characterization of service.  MPM 1910-146 refers.
	C.  Applicant was separated locally with an OTH characterization.  Only CO’s with General Courts-Martial Convening Authority (GCMCA) may approved an OTH discharge.  MPM 1910-704 refers.
	You are directed to enter the following on NAVPERS 1070/613 (Service Record Pg 13) in lieu of the NAVPERS 1070/615 (Record of Discharge):
		A: Type discharge:  GENERAL (UNDER HONORABLE CONDITIONS).
.		B: Reason for discharge:  MISCONDUCT - DRUG ABUSE.
		C: Not recommended for re-enlistment (RE-4), SPD HKK.
		D: Authority:  MILPERSMAN 1910-146.
	This discharge page 13 should replace the previous discharge page 13 prepared.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20040822
Reason for Discharge				
Least Favorable Characterization:			
Date Applicant Responded to Notification:		20040822
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			  20040822
GCMCA Review				

Discharge directed by (date):	COMMANDING OFFICER, NAVAL RESERVE CENTER NEW ORLEANS LOUISIANA
Narrative reason directed:				
Characterization directed:				
Date Applicant Discharged:			20040823

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:				46
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					11
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation	 (Describe Below)		5

        Total Number of Pages:				63

       Description of Other Documentation:
       	Applicant's resume
	Certificate of Merit from The City of New Orleans
	Award of Merit

Discussion

Issue 1 (Re-enlist):   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does 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 (Good Sailor, ):  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.  The record documents the Applicant’s in-service use of illegal drugs, which is the basis for his discharge.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Commander Navy Personnel Command has previously taken action to rectify the improper discharge processing by directing a change in the Applicant’s characterization of service to General (Under Honorable Conditions).  Members who are separated due to drug abuse normally receive a characterization of Under other Than Honorable conditions, therefore the Board could discern no remaining impropriety or inequity and therefore considers his discharge proper and equitable.  

Issue 3 (Didn’t use drugs, ):  The Applicant contends that he never used drugs.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service as under other than honorable conditions.  The Applicant failed to provide substantiated evidence to prove his contention that the Navy Drug Laboratory’s test results were in error.  Nor did he provide evidence of his current drug free existence.  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