ex-OS1, USN

Current Discharge and Applicant’s Request

Application Received: 20101026
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)	19880729 - 19881226  	Active:	 19881227 - 19921222 HON
				USN 19921223 - 19961219 HON
				USN 19961220 - 20000809 HON
				USN 20000820 - 20030719 HON

Period of Service Under Review:
Date of Current Enlistment:  20030720	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20041208	Highest Rank/Rate:  OS1
Length of Service:   Year     Months   19 Days
Education Level:  	AFQT:  67
Evaluation Marks:	Performance:  4.0 (1)	Behavior:  3.0 (1)	OTA:  3.29

Awards and Decorations (per DD 214):	Rifle  Pistol   (2) CAR NUC ASUC GCM (4) NDSM AFEM (2) SWASM (2) SSDR (3) NATO FLoC (2) SWI NPI

Periods of UA/CONF:  

NJP:  NONE	SCM:  NONE	SPCM:  	CC:  	Retention Warning Counseling:  NONE

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 28 April 2005, 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.	Applicant contends his discharge was improper/inequitable based on an isolated incident in 16 years of service, for which he claims innocence.
2.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date:  20111205		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 identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record reflected that the Applicant tested positive for cocaine, 1372 ng/ml, on a command urinalysis conducted on 24 May 2004 (NAVDRUGLAB msg 011948Z Jun 04).  The record also revealed that the Applicant had an enlistment waiver for pre-service use of marijuana prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory per the Naval Military Personnel Manual.  When notified of administrative separation processing using the  procedure on 10 Jun 2004, the Applicant exercised  rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board (ASB).  The ASB was conducted on 27 Aug 2004 and resulted in the following: (by 2-1 vote) via a preponderance of the evidence that the Applicant committed misconduct (drug abuse); (by 2-1 vote) that the Applicant be separated from the Navy; (by 3-0 vote) that the Applicant should receive a General (Under Honorable Conditions) discharge.  The Applicant’s commanding officer endorsed the ASB’s findings and recommendations and submitted it to the Separation Authority on 7 Oct 2004.  On 14 Oct 2004, the Separation Authority directed that the Applicant be separated per the ASB’s recommendation.  The Applicant was separated from the Navy on 8 Dec 2004 with a General (Under Honorable Conditions) discharge due to Misconduct (Drug Abuse).

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable based on an isolated incident in 16 years of service, for which he claims innocence.  In his letter to the NDRB, the Applicant claims that he requested a court-martial proceeding but was denied and that he was only afforded the opportunity for an Administrative Separation Board.  The NDRB did note that, except in the case of a person attached to or embarked on a ship, punishment may not be imposed under Article 15 (NJP) upon any member of the Armed Forces who has, before the imposition of NJP, demanded trial by court-martial in lieu of NJP.  After reviewing the Applicant’s service records, the NDRB found no evidence to support the Applicant’s claim that he attempted to refuse NJP and demand trial by court-martial.  At the time of his positive urinalysis test result (for cocaine), he was assigned to the Naval Special Warfare Center, San Diego CA and was not assigned to or embarked aboard ship.  Nevertheless, the Applicant did not receive NJP and so never had the right to refuse NJP and demand a court-martial.  Instead, the Applicant was notified of administrative separation processing for drug abuse misconduct.  Upon notification, the Applicant exercised his right to consult with and request an Administrative Separation Board, which was subsequently conducted on 27 Aug 2004.  The ASB, after examining all the evidence, to include the Applicant’s service records, testimony provided by the Applicant, character witnesses, and a PhD representative from the Naval Drug Lab, found by a preponderance of the evidence (2-1 vote) that the Applicant had committed misconduct and further recommended he be separated from the Navy with a General (Under Honorable Conditions) discharge.

Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline; violation of Article 112a meets this standard.  Although he denied using cocaine during the administrative board proceedings, he could not explain how cocaine could have possibly been 

introduced into his body.  The evidence of record did not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is warranted when a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s failure to meet the requirements of conduct expected of all Sailors, especially considering his grade, military job specialty, and total length of service, and falls short of what is required for an upgrade in the characterization of service to Honorable.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’s character or an aberration.  However, there is no law or regulation, that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in 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.  The Applicant submitted several character letters of reference, an employer letter of reference, and a curriculum vitae.  After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration his testimony, the testimony of his witness, and the facts and circumstances unique to this case, the NDRB determined that the Applicant’s discharge was proper and equitable and in accordance with the orders and directives in effect at the time of his separation.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation 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, Automatic Upgrades, 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