ex-PNSA, USN

Current Discharge and Applicant’s Request

Application Received: 20090123
Characterization of Service Received:    
Narrative Reason for Discharge:     (DRUG ABUSE)
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040114 - 20040315  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20040316	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050712	Highest Rank/Rate:  PNSA
Length of Service:   Year(s)     Month(s)   27 Day(s)
Education Level:  	AFQT:  81
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR
Awards and Decorations (per DD 214):	 

Periods of Time Lost:  20050630-20050707 (8 days)  [Extracted from DD Form 214, Block 29]

NJP:            SCM:   	    SPCM:            CC:   	Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20070110
NDRB Documentary Review Docket Number:	ND06-00536
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:		Service/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/To Representation:		From/To Congress member:	
                    Other Documentation:	

Applicant Testified:       Applicant Available for Questions:       Witnesses:  Yes (1)      Observers:  Yes (2) 

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

Applicant’s Issues

1.    Was denied due process by evidence being withheld from her counsel.
2.	Claims she did not use drugs and should not receive a general discharge.
3.	Post-service accomplishments warrant a change to record.

Decision

Date:  20091104		Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included a self-admission of drug abuse to a urinalysis test observer.  Based on the offense committed, processing for administrative separation was mandatory.  When processed for administrative separation, the Applicant elected to consult with a qualified counsel, submit a written statement, and request an administrative discharge board. The administrative discharge board voted 3–0 that a preponderance of the evidence supported misconduct due to drug abuse, that the evidence warrants separation, and that separation with a General (Under Honorable Conditions) characterization was appropriate.

:  (Decisional) ()  .  The Applicant contends that she was denied due process as evidence involving her urinalysis was withheld from her counsel.  Specifically, she alleges that her counsel was not given sufficient time to secure from an NCIS agent the name of an informant involved with the Applicant’s case in order the question  him prior to the administrative discharge board.  After reviewing the details of the allegation, the NDRB determined that the Applicant’s counsel did in fact have sufficient opportunity to contact the informant. 

Issue 2:  (Decisional) ()  .  The Applicant claims that she did not use drugs and should not have received a general discharge because she had a good military record.  The NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses warrant separation from the Navy to maintain good order and discipline.  The record revealed that the Applicant admitted to a urinalysis observer that she was getting a divorce and was having problems, and had decided to smoke some weed and get high.  The urinalysis observer then reported the Applicant’s admission to appropriate authorities.  Admission of drug use is grounds for mandatory processing for separation from the Navy.  In addition, the Applicant admitted during her sworn statement that she knew about a separate ongoing investigation involving her alleged drug use, and that she had confronted the alleged informant, who she described as a drug user and a social acquaintance, about why he had reported her drug use to the chain of command.    

Issue 3:  (Decisional) ()  .  The Applicant contends her post-service accomplishments warrant consideration for an upgrade in characterization to Honorable, and she provided some verifiable documentation to support her contention.  After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration her testimony, the testimony of her witness, and the facts and circumstances unique to this case, the NDRB determined relief is not warranted based on equitable grounds. The Board voted unanimously to keep the characterization of service and the narrative reason for separation the same as issued.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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