ex-AR, USN

Current Discharge and Applicant’s Request

Application Received: 20130919
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)	20010922 - 20020521  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  20020522	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20021209	Highest Rank/Rate:  AR
Length of Service:   Year(s)     Month(s)   18 Day(s)
Education Level:  	AFQT:  44
Evaluation Marks:	Performance:  NFIR

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

NJP:  

- 20021114:	Article  (Wrongful use, possession, etc. of controlled substances, Amphetamine, 544 ng/mL and Methamphetamine, 1367 ng/mL)
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “”
	
The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, that the DD 214 be corrected as appropriate.
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 33, 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.	The Applicant wants to have the opportunity to reenlist.
2.    The Applicant contends his current discharge is affecting employment and educational opportunities.
3.    The Applicant contends that he came in on a DUI waiver and should have been offered rehabilitation treatment, particularly before being discharged.
4.	The Applicant contends he did not receive due process.
5.	The Applicant contends he served honorably and used an illegal substance after realizing he did not like his rating.
6.    The Applicant contends he is not the person his discharge reflects him to be, and he has done everything in his power to lead a good and honorable life.

Decision

Date:  20140428		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   for  of the Uniform Code of Military Justice (UCMJ): Article  (Wrongful use, possession, etc. of controlled substances, 2 specifications).  The Applicant  a pre-service drug waiver prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the  procedure, the Applicant   rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

:  (Nondecisional)  The Applicant wants to have the opportunity to reenlist.  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 Board for Correction of Naval Records 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.

:  (Nondecisional)  The Applicant contends his current discharge is affecting employment and 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.

:  (Decisional) ()  .  The Applicant contends that he came in on a DUI waiver and should have been offered rehabilitation treatment, particularly before being discharged.  Many servicemembers enlist in the Navy on drug and alcohol waivers, yet complete their obligations without incident.  This by itself is not an admission of an abusive problem with alcohol or drugs but is rather the Navy offering a second chance to recruits to serve honorably.  In reviewing the Applicant’s record of service, it shows that he enlisted into the Navy on a DUI waiver.  There are no indications, however, that he was addicted to alcohol or drugs upon enlistment.  Prior to entering the service, the Applicant checked “No” for alcohol abuse on his DD Form 2807-1, dated 20010921.  If the Applicant believed he required rehabilitation treatment for alcohol or drug use, there were numerous legal options available to him while in service to address these problems.  It was incumbent upon him, however, to seek help and not incumbent upon his command to identify a problem and get him into treatment.  As for treatment before discharge, on the Applicant’s pre-separation physical, dated 20021102, the Applicant admitted to using illegal drugs, checked “Yes” to using tobacco products, and checked “No” for the use of alcohol.  

There is a handwritten comment on the form that states, “Denies needle use, denies other high risk behavior.”  The record shows clear evidence that the Navy properly screened the Applicant for alcohol and drug abuse prior to discharge and gave him several opportunities to indicate that he had a problem that required rehabilitation.  In each screening, the Applicant showed no symptoms of abuse or requested treatment.  Even if rehabilitation would have been warranted, it would not have been for the retention of the Applicant but would have been offered prior to separation as a benefit of his service.  After a complete review, the NDRB determined his discharge was proper and equitable.  Relief denied.

Issue 4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he did not receive due process.  Several documents in the Applicant’s service record show that he was aware of the Navy’s zero-tolerance drug policy.  After testing positive for the use of methamphetamines and amphetamines, on 14 November 2002, the Applicant’s commanding officer found him guilty of violating UCMJ Article 112a at Captain’s Mast.  Violation of the Navy’s drug policy requires mandatory processing for administrative separation.  On 21 November 2002, the Applicant was notified of administrative separation processing, and he waived, in writing, his rights to consult with a qualified counsel, to submit a written statement to the Separation Authority, and to appear before an administrative separation board.  The Separation Authority (Commander, Amphibious Group Three), after reviewing the facts of the case, determined the Applicant was no longer fit to serve and ordered his discharge Under Other Than Honorable Conditions for Misconduct (Drug Abuse).  After a thorough review of the Applicant’s service and his statement, the NDRB determined he received full due process, was afforded all applicable rights, and was properly and equitably discharged from the Navy.  Relief denied.

Issue 5:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he served honorably and used an illegal substance after realizing he did not like his rating.  The Applicant submitted an enlisted guarantee form dated 20010922 showing that he would come into the Navy as an Aviation Machinist’s Mate on a four year contract with no bonus.  On 20020225, the Applicant signed Annex B cancelling his prior enlistment guarantee, showing that he would be an Aviation Ordnanceman on a four year, 12 month extended enlistment, with a $4,000 enlistment bonus.  In the Applicant’s own statement regarding his frustrations with efforts to obtain his driver’s license and being pushed into a rating that he was erroneously told he could change, he states that “these two factors led me to intentionally test dirty before deployment.”  Intentionally using an illegal substance before a wartime deployment typically warrants a Special or General Court-Martial that would likely have resulted in a Bad Conduct or Dishonorable Discharge, confinement, reduction in rank to E-1, and a fine, however, his command leniently decided to administratively separate the Applicant.  Further, the Applicant did not receive a Good Conduct Medal, which requires three years of misconduct-free service.  The confusion arose from the Applicant’s Awards page from his service record, which reset the three-year counter after his Captain’s Mast on 14 November 2002.  The Applicant only served for 6 months before being leniently discharged Under Other Than Honorable Conditions for Misconduct (Drug Abuse).  Relief denied.  

Issue 6:  (Decisional) ()  .  The Applicant contends that he is not the person his discharge reflects him to be, and he has done everything in his power to lead a good and honorable life.  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, character reference letters, his work history resume, work reference letters, and documentary evidence of completion of a drug and alcohol rehabilitation program, in-service training, post-service college, and unemployment benefits.  The Applicant could have provided other documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The NDRB determined the characterization of service received was appropriate considering the length of service and UCMJ violations.  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 for additional information.

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