ex-ADAR, USN

Current Discharge and Applicant’s Request

Application Received: 20120321
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19940628 - 19950619  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19950620	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19970325	Highest Rank/Rate:  ADAN
Length of Service:   Year(s)     Month(s)   06 Day(s)
Education Level:  	AFQT:  72
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	

Periods of UA/CONF:  

NJP:  

- 19961121:	Article  (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer)
	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:  

- 19970206:	Article  (Wrongful use, possession, etc. of controlled substances, to wit: marijuana and methamphetamine)  
	Awarded: Oral admonition  RIR  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 14, effective 3 October 1996 until 11 December 1997, 
Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT. 

B.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630620, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - DRUG ABUSE.

C.  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.	The Applicant contends his in-service conduct warrants consideration for an upgrade.
2.	The Applicant contends the characterization of service and narrative reason for separation are improper and inequitable.
3.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20130213		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 Board did complete 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 included no NAVPERS 1070/613 (Page 13) warnings and   for  of the Uniform Code of Military Justice (UCMJ): Article 91 (Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey an order or regulation), and Article 112a (Wrongful use, possession, etc. of controlled substances).  The Applicant also had a pre-service drug waiver for using marijuana  prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing for Misconduct (Pattern of Misconduct) and Misconduct (Drug Abuse) using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board. 

:  (Decisional) ()  .  The Applicant contends his in-service conduct warrants consideration for an upgrade.  Certain serious offenses warrant separation from the service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, awards, family history, or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  Also, the NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

:  (Decisional) ()  .  The Applicant contends the characterization of service and narrative reason for separation are improper and inequitable.  During the Applicant’s one year and nine months of service, he was found guilty at two NJPs of violating UCMJ Articles 91, 92, and 112a, all of which are considered serious offenses per Appendix 12 of the Manual for Courts-Martial and could have resulted in a punitive discharge (i.e., Bad Conduct or Dishonorable) as the result of a Special or General Court-Martial.  Although the Applicant met the requirements for administrative separation after his first NJP for Misconduct (Serious Offense), his command decided not to administratively discharge him but to allow him to continue service.  Less than three months later, the Applicant was found guilty of violating UCMJ Article 112a at his second NJP based upon urinalysis results that tested positive for THC and methamphetamine.  To be found guilty at NJP, a commanding officer only has to find that a preponderance of the evidence supports a finding of guilty.  In the Applicant’s case, his positive urinalysis for THC and methamphetamine provided the preponderance of the evidence that he committed Misconduct (Drug Abuse), and the NDRB determined that proper procedures were followed for his NJP and that he was properly found guilty of violating UCMJ Article 112a.  Conversations the Applicant had with a medical officer had no 

relevance toward his finding of guilt at NJP.  His positive urinalysis provided the preponderance of evidence of guilt.  The Applicant provided no proof that he did not wrongfully use a controlled substance.  Per the Navy’s drug policy, violation of Article 112a requires mandatory processing for administrative separation regardless of grade, performance, or time in service.  Per the Naval Military Personnel Manual (MILPERSMAN), when a Sailor is notified of administrative separation processing, he must be notified of all bases for separation.  In the Applicant’s case, he was notified of administrative separation processing for Misconduct (Pattern of Misconduct) and Misconduct (Drug Abuse).  Although he also met the requirements for separation due to Misconduct (Serious Offense), he was not notified of this basis and so could not be discharged for this basis.  This failure to notify him of separation for this basis, however, does not invalidate the entire separation process.  He waived all of his rights, and his commanding officer recommended he be discharged Under Other Than Honorable Conditions.  The Separation Authority (Commander, Naval Air Force, U.S. Pacific Fleet) reviewed the facts of the case and ordered the Applicant to be discharged Under Other Than Honorable Conditions for Misconduct (Pattern of Misconduct).  The NDRB determined the characterization of service was equitable and warranted, because the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.

The Applicant’s assertion that he warrants relief based on Giles v. Secretary of the Army has no merit nor does it have any relevance to the Applicant’s case.  Giles v. Secretary of the Army concerned a specific group of servicemembers who provided urine samples in the 1970s as part of a survey by the U.S. military to identify the level of drug abuse in the services.  Subsequently, the services used these results to discharge servicemembers Under Other Than Honorable Conditions.  The court ruled that while separation was warranted, the characterization Under Other Than Honorable Conditions was not.  This case only applied to those servicemembers who participated in the survey.  Also, subparagraph 3.4.1.1.4 from Department of Defense Directive 1010.1 (9 December 1994) cited by the Applicant does not pertain to the Applicant’s misconduct.  Subparagraph 3.4.1.1.4 concerns urinalysis results obtained after a servicemember voluntarily submits to a Department of Defense treatment and rehabilitation program (see subparagraph 3.4.1.1).  Per MILPERSMAN, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630620, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - DRUG ABUSE, the Applicant was properly processed for administrative separation for Misconduct (Drug Abuse).

However, the NDRB did discern an impropriety with respect to the narrative reason for separation.  Per MILPERSMAN, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 11 December 1997, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT, a pattern of misconduct is met with two or more instances of misconduct (they do not need to be related or violate the same UCMJ article), however, the Applicant must also have violated a Page 13 retention warning.  In the 18 February 1997 recommendation for administrative separation from the Applicant’s commanding officer to the Separation Authority, he indicates that the Applicant never received a Page 13 retention warning.  While the Applicant had two instances of misconduct, he did not violate a Page 13 retention warning and so separation for Misconduct (Pattern of Misconduct) was improper.  However, the Applicant was also notified of separation due to Misconduct (Drug Abuse), the requirements of which he met with his finding of guilt for violating UCMJ Article 112a at NJP.  Therefore, the NDRB determined that a change to the narrative reason for separation from Misconduct (Pattern of Misconduct) to Misconduct (Drug Abuse) was warranted and proper.  Partial relief granted in changing the narrative reason from Misconduct (Pattern of Misconduct). 

:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB considers 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.  The Applicant provided a personal statement, a statement from his mother, character references, awards, and documentation to show he earned a Bachelor of Science degree and membership in Phi Theta Kappa, six completion certificates for Federal Emergency Management Agency courses, continuous employment as a middle school teacher, community volunteer work, is married, owns a home, and is the father of two adopted children.  After reviewing the facts and circumstances unique to this case, and after reviewing the extensive post-service documentation, the NDRB determined that some relief was warranted based on the issue of equity and voted unanimously to upgrade the characterization of service to General (Under Honorable Conditions).  Full relief to Honorable was not granted due to the serious nature of drug use, which is considered a significant negative aspect of service that outweighed the positive aspects of the member’s service record.  Partial relief granted.  

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 that discharge was warranted but an improper basis of discharge was assigned.  Also at the time of discharge, the characterization of service was equitable.  However, upon further review, the NDRB determined the awarded characterization of service shall   and the narrative reason for separation shall change to MISCONDUCT.  Since 15 years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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