ex-AOAA, USN
ND06-01108

Current Discharge and Applicant’s Request:

Application Received:  				20060822
Reason for Separation:				 - drug abuse
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	sbt twelve coronado, ca

Applicant’s Request:
	Narrative Reason change to:		none requested
	Characterization change to:		
	Review Requested:			
	Representation:  				
	Issues (as summarized by NDRB):		1. Change RE Code, desire to re-enlist.
						2.  Did not use drugs, urinalysis testing procedure compromised.
						3.  Administrative Discharge Board was not fair and impartial.

Decision:

Date of Decision:					200070719
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)				20000731 - 20001018 
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				20001019
Years Contracted:  				;        
Date of Discharge:				20030820
Length of Service:				02  Yrs  10  Mos  02  Days (does not exclude lost time, if any)
Time Lost During This Period:			

Education Level:  				
Age at this Enlistment:  				
AFQT:  						71
Highest Rate/Rank:				AOAN

Performance Evaluation Averages (number of marks):
			Performance:  3.0 (2)	Behavior:  2.5 (2)		OTA:  3.09

Awards and Decorations (as listed on the DD Form 214):  NAVY UNIT COMMENDATION MEDAL, NATIONAL DEFENSE SERVICE MEDAL, NAVY RIFLE EXPERT MEDAL, NAVY PISTOL EXPERT MEDAL

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

20030131:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20030129, tested positive for THC.

20030226:	NJP for violation(s) of UCMJ:
	Article 112a:  Wrongful use of controlled substance on 20030129.
	Award:  Forfeiture of $645.00 for 1 month, restriction for 45 days, reduction to E-2.  Restriction suspended.
	No indication of appeal in the record.

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

Record not available.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURE
Date Notified:					20030306
Reason for Discharge:				MISCONDUCT - 
Least Favorable Characterization:			

Date Applicant Responded to Notification:		20030306
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       

Administrative Board Date:			20030508     
	Findings, by preponderance of the evidence:	By VOTE OF 3-0  -  .
	Recommendation on Separation:		By VOTE OF 3-0 separation  warranted.
	Recommendation on Characterization:	By VOTE OF 3-0 

Commanding Officer Recommendation (date):	 (20030721)
Separation Authority (date):	COMMANDER, SPECIAL WARFARE COMMAND  (20030801)
	Reason for discharge directed:		 - 
	Characterization directed:			
Date Applicant Discharged:			20030820

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:				9
	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:		1
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				10

       Description of Other Documentation:  NONE.
       	     

Discussion

Issue 1:   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 ().  The NDRB determined that there is credible evidence in the record supporting the conclusion that the Applicant used marijuana, a violation of the UCMJ, Article 112a.  The NDRB noted that the Applicant has consistently denied using marijuana and noted the administrative irregularities (ably identified by the Applicant’s counsel during his Administrative Discharge Board) regarding completion of the custody documents during the urinalysis in question.  Administrative irregularities, however, do not necessarily mean that a urine sample is compromised.  In light of all the facts and circumstances of this case, the Board determined that the preponderance of the evidence reasonably supported the conclusion that the urine sample which tested positive for THC (marijuana) was, in fact, the Applicant’s sample.  The Applicant’s Commanding Officer weighed the evidence regarding the allegation and determined that a preponderance of the evidence supported the imposition of nonjudicial punishment, thus substantiating a factual basis requiring processing the Applicant for administrative separation proceedings.  An Administrative Discharge Board weighed the evidence, to include additional exculpatory evidence not before the Commanding Officer, and determined that a preponderance of the evidence supported the reason for discharge and warranted separation.  Finally, the Separation Authority reviewed all the evidence, to include additional matters raised by the Applicant’s counsel, and determined that discharge was appropriate.  The NDRB found no impropriety or inequity in the processing and decision-making involved in the Applicant’s case.  Therefore, relief is not warranted on this issue.

Issue 3 ().  The Board determined that the Applicant’s Administrative Discharge Board carried out its duties in a thorough, fair and impartial manner.  The record demonstrates that the Administrative Discharge Board carefully considered all relevant evidence, including that offered by the Applicant to demonstrate that he had not used an illegal drug.  The nature and scope of the Administrative Discharge Board members’ questioning of witnesses, the breadth of evidence they considered, and the length of time they deliberated all indicate that they gave careful consideration to the Applicant’s case.  Merely because the Board did not find the Applicant’s evidence convincing or his argument persuasive does not mean the Board was not fair and impartial.  The NDRB found no evidence, including the Applicant’s counsel’s characterization of alleged post-hearing comments, to support Applicant’s contention that his Administrative Discharge Board did not carry out its duty properly and equitably.  Relief is not warranted on this issue.

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.

Minority Opinion

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
25 January 2004, 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, 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.  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