ex-IT2, USN
ND06-01116

Current Discharge and Applicant’s Request:

Application Received:  				20060823     
Characterization of Service:			
Reason for Separation:				MISCONDUCT - 
Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	USS KAUFFMAN (FFG-59)

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

Applicant’s Issues as Summarized by the Board:

1.  Misconduct was isolated incident in 16 years of good service
2.  Misconduct due to stress of deaths in family.

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 Narrative Reason shall   - DRUG ABUSE.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19860130-19861005 
Active:        					19861006-19901002 HON      
Active:        					19901003-19960831 HON
Active:        					19960901 19980305 HON
Active:        					19980306-19990723 HON           
Period of Service Under Review:
Date of Enlistment:  				19990724     
Years Contracted:  				;        
Date of Discharge:				20030411
Length of Service:				03  Yrs  08  Mos  18  Days (does not exclude lost time, if any)
Time Lost During This Period:			

Education Level:  				
Age at this Enlistment:  				31
AFQT:  						42
Highest Rate/Rank:				IT1

Performance Evaluation Averages (number of marks):
		Performance:  3.4 (5)	Behavior:  2.8 (5)		OTA:  3.09 (6)      

Awards and Decorations (per DD Form 214):  SEA SERVICE DEPLOYMENT RIBBON, BATTLE ”E” AWARD, JOINT MERITORIOUS UNIT AWARD (3RD), ARMED FORCES EXP MEDAL (2ND), MERITORIOUS UNIT COMM RIBBON (2ND), NAVY ACHIEVEMENT MEDAL, ARMED FORCES SERVICE MEDAL, FLAG LETTER OF COMMENDATION (2ND), NAVY GOOD CONDUCT AWARD (4TH) 02NOV28, NATIONAL DEFENSE SERVICE MEDAL (2ND)   

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

19990724:	Reenlisted for a term of 4 years.

20030313:	NAVDRUGLAB Jacksonville, FL, reported Applicant’s urine sample, received 20030305, tested positive for (Cocaine).

20030318:	NJP for violation(s) of UCMJ:
	Article 112A: Wrongfully use of cocaine. 
	Award:  Forfeiture of $1332.00 for 2 months, restriction and extra duty for 45 days, reduction to E-5.
	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:					20030319
Reason for Discharge				  -  
Least Favorable Characterization:			

Date Applicant Responded to Notification:		20030319
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       

Administrative Board Date:			NOT APPLICABLE
Commanding Officer Recommendation (date):	  (20030326)
Separation Authority (date):	COMCRUDESGRU TWO  (20030407)
	Reason directed:				MISCONDUCT - 
	Characterization directed:			
Date Applicant Discharged:			20030411

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)		     

        Total Number of Pages:				1     

       Description of Other Documentation:
       	     

Applicant’s Issues as Summarized by the Board:

1.  Misconduct was isolated incident in 16 years of good service
2.  Misconduct due to stress of deaths in family.

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 “16 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.

Issue 2 ().  The Applicant contends his illegal cocaine use was the result of stress caused by family situation (a series of deaths).  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  In the Applicant’s case, 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 NDRB found that the Applicant's service was equitably characterized.  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 (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