ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20091210
Characterization of Service Received:  
Narrative Reason for Discharge:   
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20080815 - 20080915  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20080916	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090417	Highest Rank/Rate:  AA
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  62
Evaluation Marks:	Performance:  NFIR 

Awards and Decorations (per DD 214):	Pistol   

Periods of UA/CONF:  

NJP:  
- 20090318:	Article  (Failure to obey an order or regulation - wrongful use of “Spice”)
	Awarded:      Suspended:   

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 92.

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

Applicant’s Issues

1.	Decisional issues: (Equity/Propriety) The Applicant contends that his discharge was both improper and inequitable in that SPICE “Tobacco” was not illegal or against Naval Air Station Pensacola policies and that the Applicant was told at basic training that smoking tobacco was acceptable in the Navy.  The Applicant contends that it was not his intention to break a rule of the base, and he intended to fulfill his enlistment with meritorious behavior.      

Decision

Date:  20110324             	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 NDRB 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 NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.  

The Applicant entered military service at age 18 with waivers to enlistment standards for pre-service use of illegal drugs (marijuana) and a pre-service moral waiver for a chart “C” adjudicated criminal offense - possession of marijuana.  With waivers, he enlisted on a guarantee of training in the Aviation Mechanical Training Program with a service retention bonus.  The Applicant’s official record of service included no NAVPERS 1070/613 retention-counseling warnings but contains one administrative nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation, specifically, violation of SECNAVINST 5300.28).  The Applicant’s service record reflects his acknowledgment and understanding - in writing - of the Navy Zero Tolerance Policy on Illegal Drug Use, signed upon entering the delayed entry program on 12 August 2008.  In addition, the Applicant was interviewed personally regarding his pre-service drug usage and criminal drug-related misconduct and was further counseled personally on the Navy Zero Tolerance Policy regarding drugs on 15 August 2008 while processing his required waiver to enlistment standards.           

The Applicant was notified of the Commanding Officer’s recommendation for administrative separation in writing on 01 April 2009.  The Applicant was advised that the basis for separation was Misconduct (Commission of a Serious Offense) - as evidenced by his violation of the UCMJ, Article 92 (Failure to obey a lawful order) - in accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN).  The Applicant acknowledged - in writing - that he understood that the least favorable characterization of service at discharge was General (Under Honorable Conditions).  He further elected to waive his right to consult with qualified legal counsel or to submit a written statement to the Separation Authority.  The Applicant was not eligible for an administrative separation board due to his length of service.  On 08 April 2009, the Separation Authority approved the Command’s recommendation for discharge and designated that the basis for separation would be Misconduct (Commission of a Serious Offense), having determined that the evidence of record supported the discharge and that the characterization of service as recommended, was warranted.  On 17 April 2009, the Applicant was discharged with a General (Under Honorable Conditions) characterization of service and was further advised that he was not recommended for reenlistment or reentry in the armed services.               

:  (Decisional) ()  .  The Applicant contends his discharge was both improper and inequitable in that SPICE “Tobacco” was not illegal, nor was it against Naval Air Station Pensacola policies.  Furthermore, the Applicant contends that he was instructed at basic training that smoking tobacco was acceptable in the Navy.  The Applicant contends that he was smoking “SPICE” tobacco as an alternative cigarette, which was not against the law, and that he should not have been punished criminally for it.  The Applicant further contends that it was not his intention to break a rule of the base and that he intended to fulfill his enlistment with meritorious behavior. 

The NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  Article 1910-142 of the MILPERSMAN specifies that service members may be separated based on the commission of a serious military offense when the Commanding Officer believes the specific circumstances of the offense warrant separation, and that offense would warrant a punitive discharge if adjudicated at trial by court-martial.  Administrative separation for the commission of a serious offense does not require adjudication by nonjudicial or judicial proceedings; however, the offense must be substantiated by a preponderance of evidence.  The Applicant’s service record formally documents a determination of guilt for violation of Article 92 of the UCMJ at a nonjudicial punishment.  In accordance with the Manual for Courts-Martial (2008 edition), violation of Article 92 (Failure to obey a lawful order) of the UCMJ warrants a punitive discharge and confinement for up to 2 years, if adjudicated at trial by court-martial; thus, violation of Article 92 meets the requirement of the MILPERSMAN for consideration as a serious offense.  

The Applicant contends that he was just smoking tobacco as an alternative to regular cigarettes, which was not against the law, and that he should not be punished criminally.  The Commanding Officer determined that the Applicant was not smoking SPICE as an alternative to smoking regular cigarettes, but that he was smoking this non-tobacco product with intent to induce intoxication, excitement, or stupefaction of the central nervous system in direct violation of the Navy’s Zero Tolerance Drug Policy.  The Commanding Officer made this determination in consideration of the facts that: 

(1) SPICE is not sold as tobacco in order to avoid U.S. Food and Drug Administration (FDA) regulation and oversight; 
(2) SPICE is a brand name for a mixture of herbs labeled and sold as incense;
(3) The packaging specifically states that it IS NOT intended for human consumption; 
(4) At the time of the Applicant’s incident, SPICE was selling for approximately $145.00 per five-gram package, exceeding the cost of an FDA-regulated pack of cigarettes by over 20 times; 
(5) At the time of the incident, SPICE use was on the rise and was known to be smoked for its cannabis-like effect caused by the mixture of synthetic cannabinoid drugs it contains; and
(6) At the time of the incident, SPICE was known to be undetectable by the Navy Drug Urinalysis Testing Program.

In accordance with Navy orders, the unlawful use of controlled substance analogues (designer drugs), natural substances (e.g., fungi, excretions), chemicals (e.g., chemicals wrongfully used as inhalants), propellants, and/or a prescribed or over-the-counter drug or pharmaceutical compound, with the intent to induce intoxication, excitement, or stupefaction of the central nervous system, is prohibited.  Furthermore, it will subject the violator to punitive action under the UCMJ or adverse administrative action, or both.  The Applicant attended an Alcohol and Drug Awareness class and was briefed on this exact paragraph of the Naval order and acknowledged it - by witnessed signature - on 13 November 2008, thereby establishing the factual basis of his awareness of the order.

Based on a review of the evidence and circumstances unique to this case, the NDRB determined that the Applicant’s misconduct properly satisfied the requirements established for separation based on Misconduct (Commission of a Serious Offense) as the basis for discharge.  As such, the NDRB determined there was no impropriety due to an error of fact, law, procedure, or discretion with the discharge.  Accordingly, relief based on propriety is denied.

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline.  Violation of the Navy’s Zero Tolerance Drug Policy is one of those offenses.  Pursuant to the finding of a violation of paragraph 5 (c) of the Secretary of the Navy Instruction (MILITARY SUBSTANCE ABUSE PREVENTION AND CONTROL), the Applicant’s Commanding Officer recommended that he be administratively separated from the service.  The Commanding Officer determined that the Applicant’s disregard for Naval policy, coupled with his pre-service drug use, illustrated that the Applicant had no potential for any further active Naval Service and, as such, warranted separation.

Specific to the Applicant’s contentions, the Command did not pursue punitive actions (i.e., a criminal prosecution by trial by Special or General Court-Martial) but instead opted for the more lenient administrative nonjudicial punishment and administrative separation.  The Applicant was not convicted criminally; he was administratively punished under Naval Regulations and then administratively processed for separation based on the Commander’s determination that retention in the Naval Service was no longer warranted.  

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  Based on the seriousness of the offense committed, the Command recommended his separation from the Navy with a General (Under Honorable Conditions) characterization of his 

service upon discharge.  The Separation Authority reviewed the evidence of record and the gravity of the charges and directed the Applicant be discharged for Misconduct (Commission of a Serious Offense) and that he be separated with a General (Under Honorable Conditions) characterization with an assigned reentry code of RE-4 (not recommended for reenlistment).

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB determined the Applicant’s service was honest and faithful, but that significant negative aspects of the member’s conduct and performance of duties, as outlined in the preceding paragraphs, did outweigh the positive aspects of his service record.  Accordingly, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge and that it was consistent with the characterization of discharge given others in similar circumstances.  The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief is not warranted; therefore, the character of the discharge shall not change.  Relief denied.

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 .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

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 Disabled American 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 their 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