FOR
 ex-AZ3, USN
ND06-01173

Current Discharge and Applicant’s Request:

Application Received:  				20060912
Characterization of Service:			
Narrative Reason for Separation:			
Discharge Authority:				NPC 1910-146
Last Duty Assignment/Command at Discharge:	aimd nas jacksonville, fl

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
Issues (as summarized by NDRB):			1.  One isolated incident in 70 months of unblemished service.
						2.  Punishment too harsh. 
						3.  Others are not punished as harshly or at all for the same offense.

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  .

Date of Decision:					20070802
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:	

Discussion

Issue 1. (Equity) One isolated incident in 70 months of unblemished service: The Applicant states her discharge was based on one isolated incident without consideration for her previous years of good conduct.  Despite a servicemember’s prior record of service, certain serious offenses, though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant admitted, and the record documents, her in-service use of illegal drugs which is the basis for the discharge.  The separation code (entered on block 26 of the DD-214) indicates that the Applicant waived her right to an administrative board and the discharge authority directed the Applicant’s discharge after ensuring compliance with MILPERSMAN 1910-146.  

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  An “other than honorable conditions” characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.   In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.  

Issue 2.  (Equity) Punishment too harsh:  The Applicant’s service was marred by a positive urinalysis for cocaine use and a nonjudicial punishment proceeding for her violation of UCMJ Article 112a (drug abuse).  Violations of UCMJ 112a are considered the commission of a serious offense; specifically this offense carries a maximum penalty of a Dishonorable Discharge and up to 5 years of imprisonment.  The Applicant’s conduct, which forms the primary basis for determining the characterization of service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade.  

Issue 3.  (Equity) Others are not punished as harshly or at all for the same offense:  The Applicant states that her discharge was inequitable because other servicemembers were/are punished less harshly for similar misconduct.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence supports the conclusion that the Applicant committed misconduct due to drug abuse, that separation from the naval service was appropriate, and that a under other than honor conditions discharge was warranted.  

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19961031 - 19970804  
Active:   					19970805 - 20020411  

Period of Service Under Review:
Date of Enlistment:  				20020412
Years Contracted:  				3 + 16 mo extension
Date of Discharge:				20040802
Length of Service
	Active:					02  Yrs  03  Mths  21  Dys  (does not exclude lost time)
	
Time Lost During This Period:			 

Education Level:  				
Age at this Enlistment:  				
AFQT:  						61/66
Highest Rate/Rank:				AZ2

Performance Evaluation Averages (number of marks):
	Performance: 3.5(2) Behavior: 3.0(2) OTA: 3.35 (2)

Awards and Decorations (as listed on the DD Form 214):  OVERSEAS SERVICE MEDAL, NATIONAL DEFENSE SERVICE MEDAL, NAVY AND MARINE ACHIEVEMENT MEDAL, GOOD CONDUCT SERVICE MEDAL(2), FPE

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

Nothing found in record

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

20040622:	Report of Medical History:  Applicant wrote in, “Pending OTH (due to illegal use of controlled substance)”.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					NOT FOUND IN RECORD     
Reason for Discharge	
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD     
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			SEPARATION CODE INDICATES BOARD WAIVED
Obtain Copies	  			
Submit Statement (date)			
GCMCA Review				

Administrative Board Date:			     
	Findings, by preponderance of the evidence:	
						NOT FOUND IN RECORD
	Recommendation on Separation: 		
	Recommendation on Characterization:	
						
Commanding Officer Recommendation (date):	
Separation Authority (date):	COMMANDER, NAVY REGION SOUTEAST (20040723)
	Narrative reason directed:			MISCONDUCT
	Characterization directed:			
Date Applicant Discharged:			20040802

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:				139
	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:		2
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				141

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.

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 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