ex-SR, USN

Current Discharge and Applicant’s Request

Application Received:  20070920 
Characterization of Service Received:   
Narrative Reason for Discharge:  MISCONDUCT DUE TO A PATTERN OF MISCONDUCT
Authority for Discharge:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:  
			Narrative Reason change: 

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19960718 - 19960930  		
Period of Service Under Review:
Date of Enlistment: 19961001		Period of enlistment:   Years  		Date of Discharge:  19981218
Length of Service:   Yrs  Mths 18 Dys	Education Level:  	Age at Enlistment:  	AFQT:  51 
Highest Rank/Rate:  SN	Evaluation marks:  Performance: NA	Behavior:  NA		OTA:  NA  
Awards and Decorations (per DD 214):  , , and 

NJPs:	19980824:  Article 92 (dereliction of duty).  Awarded - , , , and EPD.  Susp -  and .
	19981104:  Article 112a (wrongful use of a controlled substance).  Awarded - , , , and .  

Retention Warnings: 19980826 for violation of UCMJ Article 92 (dereliction of duty).

Types of Documents Submitted

Related to Military Service:	DD 214:  	Service and/or Medical Record:  	Other Records:  

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

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Change reenlistment code, separation code, remove court memo # 33910083 and 34229491, remove case file # 33925537, and reinstate to SN.
2.   Not retested within 24 hours of positive urinalysis results in accordance with MILPERSMAN 1910-146.  Not allowed to retest even after multiple requests.  
3.  Was not properly notified during administrative processing of right to elect an administrative board or to seek the guidance of counsel.  
4.  Post Service – Two letters of recommendation, family, county police records check, college transcripts, and employment 

Decision

Date:  20080207		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT DUE TO A PATTERN OF MISCONDUCT.

Discussion

:    which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .

Issue 2 ():  The Applicant contends that MILPERSMAN 1910-146 requires that the command retest within 24 hours of a positive urinalysis result.  This is not true; a single positive urinalysis by a navy drug lab requires processing for discharge.  It appears that the section of Article 1910-146 which the Applicant refers deals with the actions required when a non navy drug lab finds a positive test for drugs, which then requires the command to direct a urinalysis.  This issue is without merit.   

Issue 3 ():  The Applicant contends that his discharge was improper because he was not properly notified of his impending administrative discharge and was not informed of his right to be heard before an administrative review board or to consult with counsel.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant has failed to produce any evidence of his improper discharge process to support his issue.  To the contrary the Commanding Officer’s administrative separation recommendation references the discharge notification which would have officially notified the Applicant of his impending administrative discharge, his right to be heard at an administrative board, and his right to consult with counsel.  Separation processing is mandatory for Sailors who abuse illegal drugs.  The separation code (block 26 of DD-214) indicates that the Applicant waived his right to an administrative board.  Even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The record clearly reflects his violation of UCMJ Articles 92 and 112a which demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  

Issue 4 (Equity):  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct 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, is considered.  The Applicant provided in his statement to the board his claim of being a contributing member of society and backed this up with two letters of recommendation, a county police records check, college transcripts, and W-2’s verifying his employment as documentation of his post-service accomplishments.  The Board recognizes the Applicant's efforts.  However, the Applicant could have produced evidence of a drug free lifestyle and documentation of community service.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service.  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 violations of the UCMJ, Articles 92 and 112a.

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