ex-ETSN, USN

Current Discharge and Applicant’s Request

Application Received: 20150903
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20040716 - 20041128  	Active:	  20041129 – 20081125 HON

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  20081126	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20100406	Highest Rank/Rate:  ET3
Length of Service:   Year(s)     Month(s)   10 Day(s)
Education Level:  	AFQT:  81
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  1.0 (2)	OTA:  2.71

Awards and Decorations (per DD 214):	   OSR

Periods of UA/CONF:   

NJP:  

- 20080126:	Article 
	Awarded:     Suspended:   

- 20100308:	Article 112a (Wrongful use, possession, etc., of controlled substances)
	Awarded:   Suspended:  
	[Extracted from Evaluation Report & Counseling Record dated 20100308]

SCM:    SPCM:     CC:  

Retention Warning Counseling:  

- 20080125:	For violation of UCMJ Article 128 (Assault).

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 041129 UNTIL 081125”
	
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:	

Types of Witnesses Who Testified

	Expert:		Character:	

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.	The Applicant contends his commander punished him harshly for a first offense marijuana use and improperly considered his civilian court battle concerning an alleged DUI for which he was able to get the charges dropped and reduced to speeding.
2.	The Applicant contends he was unknowingly exposed to marijuana through the small music recording studio he operated out of his home.
3.	The Applicant implies consideration should be given to the fact that he lost custody of his daughter just prior to his testing positive on a urinalysis.
4.	The Applicant contends he only tested positive for the minimum amount necessary to be processed for separation and had been drinking and smoking heavily at the time.

Decision

Date:  20160111		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  NAVPERS 1070/613 (Page 13) warning and   for  of the Uniform Code of Military Justice (UCMJ):  Article  (Wrongful use, possession, etc., of controlled substances; ) and Article  (Assault, ).  The Applicant  a pre-service drug waiver prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  However, per the Applicants DD Form 214, the Separation Code HKK indicates the Applicant waived his right to an administrative board.

:  (Decisional) ()  .  The Applicant contends his commander punished him harshly for a first offense marijuana use and improperly considered his civilian court battle concerning an alleged DUI for which he was able to get the charges dropped and reduced to speeding.  Although the Applicant contends that this additional DUI related misconduct charge factored into the determination of his discharge characterization, no record of any such events were found within his official service record.  The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process.  The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  While other members of his unit may have been charged with the same or similar offenses, each case must stand on its own merits.  The Commanding Officer is allowed to consider matters for extenuation and mitigation unique to each individual.  Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment.  After an exhaustive review of the Applicant’s record, the NDRB found no improprieties in his discharge actions and determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he was unknowingly exposed to marijuana through the small music recording studio he operated out of his home.  The record of evidence clearly shows the Applicant waived his rights to trial by court-martial and an administrative separation board.  If the Applicant felt he was mistakenly charged with a crime, it was his obligation to contest those charges at the time they were made.  During a trial or administrative separation board, he would have had the opportunity to mount a defense against the charges.  The Applicant submitted no evidence to support his contention, therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs.  Relief denied.

:  (Decisional) ()  .  The Applicant implies consideration should be given to the fact that he lost custody of his daughter just prior to his testing positive on a urinalysis.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct.  Relief denied.

:  (Decisional) ()  .  The Applicant contends he only tested positive for the minimum amount necessary to be processed for separation and had been drinking and smoking heavily at the time.  Alcohol consumption is never a rationale or an acceptable excuse for inappropriate conduct, misconduct, or poor judgment.  The Navy Drug Screening Laboratory (NDSL) goes through a very thorough four-level analysis procedure, which includes immunoassay and gas chromatography/mass spectrometry testing, to accurately test all specimens, ensuring each positive sample is screened, re-screened, confirmed, and all procedures have been followed before a message is released.  All three tests (screen, re-screen, and confirmation) must be positive before a positive result is reported to the command.  After carefully reviewing the Applicant’s documentation, the NDRB determined it was not sufficient to prove his urinalysis results were false or reflected unintentional passive inhalation.  Based on the NDSL message, the NDRB determined the Applicant’s urinalysis was not a false positive.

Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade 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.  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 remain UNDER OTHER THAN HONORABLE CONDITIONS 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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