ex-ND2, USN

Current Discharge and Applicant’s Request

Application Received: 20110310
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20060824 - 20070410  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070411	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100929	Highest Rank/Rate:  ND2
Length of Service:   Year(s)     Month(s)   19 Day(s)
Education Level:  	AFQT:  82
Evaluation Marks:	Performance:  3.0 (5)	Behavior:  3.6 (5)	OTA:  3.21 (5)

Awards and Decorations (per DD 214):	Rifle  Pistol    

Periods of UA/CONF:  

NJP:  	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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 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.	Applicant contends the results of the command-directed urinalysis in which he tested positive for marijuana use were improperly used in determining his character of service upon discharge.
2.	Applicant contends his misconduct was an isolated incident in 42 months of honorable service.
3.	Applicant contends his post-service achievements are indicative of his character and warrant consideration for upgrade of his discharge.

Decision

Date:  20110310		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 three 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 of service did not contain any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer’s nonjudicial punishment (NJP), or trial by courts-martial.  During enlistment accession, the Applicant signed his acknowledgment and complete understanding of the Navy’s Zero Tolerance Drug Policy on 11 Apr 2007.  The records reflected that the Applicant submitted a urine sample (Urine Consent Form signed/dated by Applicant 2 Jun 10) on 2 Jun 2010 just after the Memorial Day holiday weekend concluded.  On or about 15 Jun 2010, the Applicant’s command received a notification from the Navy Drug Lab (Jacksonville, FL) that the Applicant’s 2 Jun 2010 urine sample tested positive for THC (marijuana, 75 ng/ml).  On 15 Jun 2010, the Applicant was counseled and then signed the Military Suspect’s Rights Acknowledgment Form.  Based on the Article 112a violation, processing for administrative separation is mandatory per the Naval Military Personnel Manual (MILPERSMAN).  Violation of UCMJ Article 112a is punishable by confinement up to two years and a Bad Conduct Discharge if adjudicated at Special or General Courts-Martial.  The Applicant’s command chose not to try him by courts-martial, but instead process him for administrative discharge.  The next day, 16 Jun 2010, the Applicant was notified of pending administrative separation proceedings.  When notified of administrative separation processing using the  procedure, the Applicant elected to exercise his rights to consult with qualified counsel and submit a written statement, but chose to waive his right to an administrative separation board.  The Applicant’s medical record contained a 12 Jul 2010 evaluation from the Naval Hospital Clinic NE that stated the Applicant had been referred to the substance abuse rehabilitation program (SARP), New London CT, on 7 Jul 2010, for evaluation due to Incident Referral.  The evaluation diagnosed the Applicant as “Alcohol Dependent” and directed that he be enrolled in Intensive Outpatient Treatment (Level II), which he subsequently completed on 26 Aug 2010.  On 31 Aug 2010, the Applicant’s Commanding Officer (Commander, Naval Submarine School, New London, CT) submitted a request to the Separation Authority (Commander, Navy Region, Mid-Atlantic) for administrative separation of the Applicant.  On 7 Sep 2010, the Separation Authority directed the Applicant be separated from the Navy for Misconduct-Drug Abuse, under MILPERSMAN section 1910-146, with a General (Under Honorable Conditions) discharge.

:  (Decisional) ()  .  The Applicant contends the results of the command-directed urinalysis in which he tested positive for marijuana use were improperly used in determining his character of service upon discharge.  The Board conducted an exhaustive review of the Applicant’s service and medical records to determine whether the characterization of service awarded the Applicant met the pertinent standards of equity.  The record reflected that the Applicant had a strong record of performance to include: Navy diver certifications, a Good Conduct Medal (Apr 2007 to Apr 2010), two Letters of Appreciation, and evaluation averages of 3.0 (Performance), 3.6 (Behavior), and 3.21 (Overall Trait Average) over five reporting periods.  The Applicant claims that upon return from a 96-hr Memorial Day holiday liberty period in 2010, he was directed by his Chief Petty Officer to report to the command urinalysis coordinator for urinalysis testing.  Upon 

reporting to the urinalysis coordinator (an HM1), he claims neither his name nor social security number were on the urinalysis roster, but he was ordered by the HM1 (not in “Command” or in the chain of command) to submit a urine sample anyway, claims which could not be substantiated with the available documentation in the records.  The Board did note that the Applicant signed a Urine Consent Form, on 2 Jun 2010, in which he acknowledged and waived his right to refuse to consent to urinalysis via signature just below the following statement “I do consent to provide a sample of my urine.  I give this consent freely and voluntarily without any promises, threats, pressure, or coercion of any kind having been used against me.”  The consent form was signed by the same HM1 as Witness and then initialed, verifying that the Command Duty Officer was informed.

The Board, after a detailed review of the records, to include documentation submitted by the Applicant, found no evidence of impropriety in the mandatory processing and subsequent administrative separation of the Applicant from the Navy for illegal drug use.  However, since the Applicant was subjected to a command-directed urinalysis that required his consent, the characterization of service awarded upon discharge cannot be determined via the urinalysis results as per Department of Defense, OPNAV and MILPERSMAN Instructions.  Therefore, the Board found the discharge to be proper due to illegal drug abuse, but the character of service awarded upon discharge to be inequitable since it was improperly based on command-directed urinalysis results.  With no other significant misconduct or negative evaluation reports in the record, the Board concluded this issue to have merit and relief was warranted in an upgrade of characterization of service to Honorable.

In consideration of the Applicant’s request for a change to the narrative reason for separation to Secretarial Authority, since no evidence of urinalysis impropriety exists and the Applicant provided no documentary evidence to indicate impropriety, the Board determined that the positive urinalysis result for illegal use of marijuana was properly applied in determining the basis for separation of the Applicant from the U.S. Navy.  Therefore, after extensive review and careful consideration of all the facts and circumstances surrounding the Applicant’s separation for illegal drug abuse, the Board determined that this issue merited partial relief in the upgrade of his discharge character of service.  Accordingly, his discharge will be upgraded to Honorable, but the narrative reason for separation will remain Misconduct (Drug Abuse).

:  (Decisional) ()  .  The Applicant contends his misconduct was an isolated incident in 42 months of honorable service.  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.  The Applicant signed the USN Drug Policy on 11 Apr 2007.  He was fully aware there is a zero tolerance policy for drug abuse, and he acknowledged the consequences.  While he may feel his wrongful use of marijuana was an isolated incident, the record reflects his misconduct was willful and demonstrated he was unfit for further service.  The evidence of record does not demonstrate the Applicant was not responsible for his conduct or he should not be held accountable for his actions.

Per the MILPERSMAN, when a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a service member commits or omits an act that constitutes a significant departure from the conduct expected of a Sailor and is normally awarded in instances involving the wrongful use or possession of illegal drugs.  After careful consideration of the Applicant’s grade, length of service, reason for separation, and his total record of service, the Separation Authority directed the Applicant be discharged from the Navy with a General (Under Honorable Conditions) discharge, which is applicable 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 willful failure to meet the requirements of conduct expected of all Sailors, especially considering his rank, the high-risk nature of his job, and his billet responsibilities at the Naval Submarine School, and falls short of what is required for an upgrade in the characterization of service to Honorable.  However, since the Applicant’s awarded character of service upon discharge was granted improperly and not in accordance with Department of Defense, OPNAV and MILPERSMAN Instructions, the issue of equity is appropriately addressed in Issue 1 above.

:  (Decisional) ()  .  The Applicant contends his post-service achievements are indicative of his character and warrant consideration for upgrade of his discharge.  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, which provides 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 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 documentation that included: correspondence between the Applicant, his Senate representative and the NDRB, Navy school/course completion certificates and service record documents, letters of appreciation, substance abuse rehabilitation program (SARP) documents, collegiate transcripts, a letter of reference, marriage/birth certificates, and U.S. Court of Appeals Decision Document (16 Jul 1980).  Though not submitted, documentation could have also included: letter(s) of recommendation from his employers; certification of non-involvement with civil authorities; evidence of financial stability; and documentation of community service.  The Board carefully reviewed all the available evidence, to include the documentation submitted by the Applicant, and determined that his post-service achievements, though commendable, did not outweigh the seriousness of the offense for which he was discharged.  However, with reference to the character of service awarded at the time of discharge, the Board determined that a General (Under Honorable Conditions) discharge would normally be appropriate considering the Applicant’s total in-service performance as most illegal drug cases involving service members results in an Under Other Than Honorable Conditions discharge per the MILPERSMAN in effect at the time of separation.  However, since the Applicant’s awarded character of service upon discharge was granted improperly and not in accordance with Department of Defense, OPNAV and MILPERSMAN Instructions, the issue of equity is appropriately addressed in Issue 1 above.

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