ex-AKAN, USN

Current Discharge and Applicant’s Request

Application Received:  20071109 
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive: 	USAF (DEP) UNC (Positive drug test)
		USNR (DEP)	20000208 - 20000214  		 
Period of Service Under Review:
Date of Enlistment: 20000215	Period of enlistment:  4 Years  	Date of Discharge:  20011102
Length of Service:   Yrs  Mths 18 Dys	Education Level:  some college	Age at Enlistment:  23	AFQT:  NA
Highest Rank/Rate:  AK3	Evaluation marks:  Performance: 3.5 (2)	Behavior:  3.5 (2)		OTA:  3.29 (2) 
Awards and Decorations (per DD 214): 

NJP:	20010830:  Articles 112a (2 specifications, wrongful use of a controlled substance and wrongfully introducing a controlled substance onto a naval installation) and 121 (larceny); Awarded - , , , and 

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.  Inequitable because board did not consider other corrective action
2.  Isolated incident
3.  Improper – failed to follow regulations relating to collection of urinalysis, no urinalysis conducted to prove drugs in or not in system
4.  Characterization more harsh than awarded other service members with similar misconduct
5.  Post Service – feeding the hungry church ministry, no drugs, no illegal conduct (Downey Superior Court District – no filings), continuing education (Cypress College spring ’05, physical therapy restorative aide, Basic Juvenile Correctional Officer Training, Loss Prevention Training), kidney donor, employed, homeowner, and parent

Decision

Date:  20080306		Location:  Washington D.C	 Representation:  

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

Discussion

Issue 1and 4 ():  The Applicant alleges that his administrative board did not consider alternative corrective action in his case thus resulting in an in equitable characterization of service which was harsher than others receive for similar misconduct.   The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of a failure by the administrative board or an inequity in his characterization of service.  Even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s misconduct.   The Applicant’s service was marred by his nonjudicial punishment for violations of UCMJ Articles 112a (wrongful use and possession of a controlled substance) and 121 (larceny).  Separation processing is mandatory for Sailors who abuse illegal drugs.  Violations of UCMJ Article 112a carry a maximum penalty of a dishonorable discharge and up to five years of imprisonment if adjudicated by a court martial.  Discharges resulting from drug abuse normally result in an under other than honorable conditions characterization of service.  Nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  

Issue 2 (Equity): The Applicant contends that his characterization of service is inequitable because the infraction was a single isolated incident.  Certain serious offenses (though isolated) warrant separation from the naval service in order to maintain proper order and discipline.  The record documents, the Applicant’s in-service drug use and drug possession aboard a naval installation which is the basis for the discharge.  An under other than honorable conditions characterization of service is warranted when significant negative aspects of a member’s overall conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade.

Issue 3 ():  The Applicant contends that his discharge is improper because he never received a urinalysis confirming a controlled substance in his body.  The Applicant was found guilty of violations of UCMJ Article 112a and 121 at nonjudicial punishment and subsequently properly processed for discharge in accordance with MILPERSMAN 1910-146.  The MILPERSMAN does not require a positive urinalysis; the act of wrongfully possessing a controlled substance is a violation and triggers the mandatory processing requirement for drug abuse.  The Applicant was notified of his intended administrative separation and of his rights.  He chose to invoke his right to consult an attorney and to be heard before and administrative board.  The administrative board unanimously found the Applicant had committed misconduct due to the commission of a serious offense and misconduct due to drug abuse.  Furthermore, they found this misconduct warranted separation and recommended a service characterization of under other than honorable conditions.  The Commanding Officer, USS KITTY HAWK (CV 63) then recommended to Commander, Naval Personnel the Applicant’s discharge agreeing with the administrative board’s recommendation.  After ensuring compliance with MILPERSMAN 1910-146 the discharge authority directed the Applicant’s discharge as a result of his misconduct and assigned a characterization of service as under other than honorable conditions.   The record clearly reflects his violation of UCMJ Article 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 5 (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 a statement to the board claiming to have volunteered through his church to feed the hungry, that he donated a kidney to his brother, he is employed, a homeowner and a parent.  Additionally he submitted documentation of his continued education, and no filings of criminal prosecution within the Downey Superior Court District as documentation of his post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of a drug free lifestyle, a verifiable employment record, 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.  

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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 

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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 violations of the UCMJ, Articles 112a and 121.

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