ex-HN, USN
ND06-01113

Current Discharge and Applicant’s Request:

Application Received:  				20060824
Reason for Separation:				 - DRUG ABUSE
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	NATNAVMEDCEN BETHESDA MD

Applicant’s Request:
	Narrative Reason change to:		NOT APPLICABLE
	Characterization change to:		
	Review Requested:			
	Representation:  				

Applicant’s Issues as Summarized by the Board:

1.  Misconduct was isolated incident in 9 years of good service

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 (Active Mariner)			19900130-19900813 
Active:        					19900814-19940210 HON
Active:        					19940211-19990325 HON
Period of Service Under Review:
Date of Enlistment:  				19990326
Years Contracted:  				;        
Date of Discharge:				19991207
Length of Service:				00  Yrs  08  Mos  11  Days (does not exclude lost time, if any)
Time Lost During This Period:			
Days Unauthorized Absence:			NONE
Days Confinement:				NONE

Education Level:  				
Age at this Enlistment:  				
AFQT:  						42
Highest Rate/Rank:				HM2

Performance Evaluation Averages (number of marks): NOT FOUND IN RECORD     

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL W/BRONZE STAR, SEA SERVICE DEPLOYMENT RIBBON (2), ARMED FORCES SERVICE MEDAL, KUWAIT LIBERATION MEDAL (KLM)(K), NATO MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, SECOND GOOD CONDUCT MEDAL AWARDED 97AUG13, ARMED FORCES EXPEDITIONARY MEDAL, COMBAT ACTION RIBBON 

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

19990326:	Reenlisted this date for a term of 2 years.

19990629:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 19990624, tested positive for (THC).

19990715:	NJP for violation(s) of UCMJ:  Article 112A: Wrongful use of a controlled substance. 
	Award:  Forfeiture of $742.00 for 2 months (suspended for 6 months), restriction/extra duty 30 days, reduction to E-4.
	No indication of appeal in the record.

19991105:	Forfeiture of pay awarded and suspended at NJP on 19990715 vacated due to continued misconduct.

19991112:	NJP for violation(s) of UCMJ:
	Article 86 (2 specifications): Failure to go to and Absence from place of duty.
	Article 91: Disobeying a Petty Officer
	Article 92: Dereliction in the performance of duties. 
	Award:  Reduction to E-3, restriction for 5 days, extra duty for 10 days.
	No indication of appeal in the record.

Service 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:					NOT FOUND IN RECORD
	Reason for Discharge			
	Least Favorable Characterization:		

Date Applicant Responded to Notification:		NOT FOUND IN RECORD     
Rights Elected at Notification:			NOT FOUND IN RECORD
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			

Administrative Board Date:			19991006     
	Findings, by preponderance of the evidence:	By 3-0 VOTE  -  .
	Recommendation on Separation: 		By 3-0 VOTE       
	Recommendation on Characterization:	By 3-0 VOTE 
	Transfer to IRR				By 3-0 VOTE NOT RECOMMENDED
Commanding Officer Recommendation (date):	NOT APPLICABLE
Separation Authority (date):	COMMANDER, NMMC BETHESDA (date not found in record)
	Reason directed:				MISCONDUCT – DRUG ABUSE
	Characterization directed:			
Date Applicant Discharged:			19991207     

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     

Applicant’s Issues as Summarized by the Board:

1.  Misconduct was isolated incident in 9 years of good service

Decisional Issues:

Issue 1 (). There is credible evidence in the record that the Applicant used illegal drugs, and he admits to doing so.  The Applicant states his discharge was based on one isolated incident in “9 years.”    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.  Further, the period of service for which the Applicant received an other than honorable characterization of service is the period of his last enlistment.  That period of service was marred by award of nonjudicial punishment (NJP) for illegal drug use in violation of Article 112a of the UCMJ, a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  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.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge, and the Board could discern no impropriety or inequity.  Therefore, 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), Change 24, effective 20 May 99 until 26 March 2000, 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.

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