ex-BMSN, USN
ND07-00461

Current Discharge and Applicant’s Request

Application Received:  20070222 			Characterization Received:  
Narrative Reason:  DRUG ABUSE 						    Authority:  MILPERSMAN 1910-146

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Application for intake to SARP was not available for CO review during Captain’s Mast
			2. Post service conduct  

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT (DRUG ABUSE).

Date:  20071120 		Location:  Washington D.C	 Representation:  

Discussion

Issue 1. The Board determined that it could not respond to this item as an issue because the meaning of the item is unclear.  An issue is unclear if a reasonable person familiar with the discharge review process cannot understand it after a review of the materials considered.  The Board could not determine how this item was related to the reason for, or characterization of, the Applicant’s discharge.  There is credible evidence in the record that the Applicant used illegal drugs, and he acknowledges doing so.  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.  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.  

Issue 2 (). The Applicant claims that, since his discharge, he has been attending 12-step meetings and battling his depression.  The Applicant submitted no corroborating evidence in support of this claim.  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 could 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.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

Issue 3 (Propriety).  While not raised as an issue by the Applicant, the Board noted that he was discharged after the expiration of his original 4 year contractual end of active service (EAS).  The Board found no evidence in the record indicating that the Applicant had voluntarily extended his enlistment beyond his EAS.  However, the Board noted that the Applicant was receiving medical treatment, including surgery, for his feet and that his Commanding Officer indicated an EAS of 20060630 due to his limited duty status.  A servicemember may be extended on active duty past his EAS for the purpose of receiving medical care.  In such cases, the member remains subject to all standards of Naval discipline; however, members who have voluntarily extended service beyond their EAS for the specific purpose of medical treatment and are being processed for administrative separation must be advised that they may decline further medical treatment and request immediate separation without further administrative separation processing.  In the Applicant’s case, the Board concluded that the Applicant appeared to have extended his EAS due to the medical treatment he was receiving, and thus was past his original EAS when he used illegal drugs, received nonjudicial punishment for that use, and was processed for administrative separation for that use.  The Board found no evidence in the record that the Applicant had been advised that he could request immediate separation without further administrative separation processing; likewise, however, the Board found no evidence that he had not been so advised.  In the absence of such evidence, the Board presumed that proper regulatory procedures were followed by processing authorities and therefore found no grounds for relief 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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20020118 - 20020205  		Active:   
Period of Service Under Review:
Date of Enlistment: 20020206	Years Contracted:  ; Extension:  	Date of Discharge:  20060630
Length of Service:  04  Yrs  04  Mths  25  Dys	Lost Time:  28 Days per DD 214
Education Level:  	Age at Enlistment:  	AFQT:  NOT FOUND IN RECORD	Highest Rank/Rate:  BMSN
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 OTA:  N/A 
Awards and Decorations (per DD 214):  GCM, NDSM, SSDR, GWOTSM, GWOTEM

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20020907:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence, Art. 87 - Missing ship’s movement..
	Awarded - FOP ( months) pay for (1 month), susp 6 months; Restr for (45 days); Extra duties (45 days).  

20041206:	Medical Board Report:  Not fit for full duty.   Recommend additional 8 months of limited duty.

20050111:	Applicant underwent surgery for pes planus and equinus (right).

20050125:	Applicant acknowledged Medical Board recommendation of 8 months limited duty expiring 20050827.  Did not desire to submit rebuttal.

20060105:	CO, NAVPHIBASE Little Creek recommended that Applicant not remain on active duty in permanent limited duty status.

20060323:	Applicant underwent surgery for pes planus and equinus (left).

20060509:	Applicant recommended for Level II treatment.

20060524:	Retention Warning for indecent text messages to a female Third Class Petty Officer. 

20060615:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urinalysis sample tested positive for cocaine.

20060620:	Applicant admitted to using cocaine.

20060620:	NJP -- Viol UCMJ Art. 112a - Wrongful use of cocaine about 20060525.
	Awarded - FOP ($400.00) for (1 month).

Discharge Process

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:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (20060620)
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	20060630

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    		Other Documentation (Describe) 

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.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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