ex-BU3, USNR
ND06-01171

Current Discharge and Applicant’s Request:

Application Received:  				20060907
Characterization of Service:			
Reason for Separation:				 - 

Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	NAVY RESERVE CENTER EARLE

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

Decision:

Date of Decision:					20070709
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  .

Applicant’s Issues as Summarized by the Board:

1.  Equity – Isolated Incident with otherwise stellar service. 
2.  Equity – Not given a board to prove that he didn’t use drugs.
3.  Equity – Post-service.

Summary of Service:

Prior Service:
Inactive:	USNR (Dep)				19870430 - 19870923  ELS
	USNR (R)				19890119 – 20010730

Active:  	USARMY				19881101 - 19890118

Period of Service Under Review:
Date of Enlistment:  				20010731
Years Contracted:  				8 YEARS   
Date of Discharge:				20051012
Length of Service		
	Active:					0  Yrs  0  Mths  29  Dys  
	Inactive:					4  Yrs  1  Mths  12  Dys  

Time Lost During This Period:			None 

Education Level:  				12
Age at this Enlistment:  				35
AFQT:  						38
Highest Rate/Rank:				BU3

Performance Evaluation Averages (number of marks):
				Performance: 4.0 (4) Behavior: 3.0(5) OTA: 3.6

Awards and Decorations (as listed on the DD Form 214):  NO DD214

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

20050801:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 20050726, tested positive for THC.

20051101:	Letter from Applicant to Commander Navy Personnel Command, Via Naval Reserve Center, objecting to his discharge because he was not given an opportunity to prove that the Navy drug test was incorrect.  

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20050804
Reason for Discharge				  due to:  
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		20050913
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Administrative Board Date:			NO BOARD
Commanding Officer Recommendation (date):	20050913
Separation Authority (date):	COMNAVPERSCOM (20051005)
	Narrative reason directed:			  
	Characterization directed:			
Date Applicant Discharged:			20051012

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:				03
	Other Period of Service:				13
       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:				16

       Description of Other Documentation:

Applicant’s Issues as Summarized by the Board:

1.  Equity – Isolated Incident with otherwise stellar service. 
2.  Equity – Not given a board to prove that he didn’t use drugs.
3.  Equity – Post-service.

The Applicant states his discharge was based on “one isolated incident in 4 years of Navy Reserves,” with otherwise good service.  Despite a servicemember’s record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  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.  There is credible evidence in the record that the Applicant used illegal drugs.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

The Applicant requests upgrade of his discharge because he was not given an opportunity to prove that he didn’t use drugs at an Administrative Discharge Board.  The Applicant was served with notice that his command intended to process him for Administrative Discharge on August 6, 2005.  In that notice, he was informed that he had a period of 30 days to respond to the notice, that failure to respond would constitute a waive of all rights, and further that processing could continue in his absence.  The Applicant did not respond to the notice until September 13, 2005.  The Applicants command forwarded the package to the Separation Authority, Commander, Navy Personnel Command (COMNAVPERSCOM) requesting separation of the Applicant.  COMNAVPERSCOM was informed that the Applicant had submitted a late request for an Administrative Discharge Board.  The Separation Authority chose to treat the Applicants failure to respond within 30 days as a waiver of rights.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient to mitigate the conduct, which precipitated the discharge.  Relief denied.

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 11, effective 29 April 2005 until Present, 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 (use of a controlled substance).

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