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Docket No. ND05-00557

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-AMH2, USN
Docket No. ND05-00557

Applicant’s Request

The application for discharge review was received on 20050214.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050713.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “While on active duty I was given a Random Drug test.  I have never use Drugs however my urine tested positive for Drugs.  I was given Several Random Drug Test after this which all was negative while on active duty I was a very Good Solder.  I am requesting that the Board conduct a Review of my military Personnel & change my Discharge to Honorable.  Please Remove the Misconduct on my DD 214”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant, unsigned, undated
Applicant’s service and medical related documents (22 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	941130 - 950221	COG
	Active:   USN			950222 - 990218	HON

Period of Service Under Review:

Date of Enlistment:  990219		Date of Discharge:  000731

Length of Service (years, months, days):

	Active:    01  05  12
	Inactive:  None

Age at Entry:  29			Years Contracted:  4

Education Level:  11 (HSED)	AFQT:  56

Highest Rate:  AMH2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)		Behavior:  2.00 (2)		OTA:  2.92

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NPM, SSDR, AFSM, AFEM, GCM, NER

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

990219:	Applicant reenlisted for 4 years.

990629:	Record of counseling:  Advised of deficiency (responsibilities/reliability), notified of corrective actions and assistance available.  Applicant on unauthorized absence for 12 hours and 26 minutes. 

990713:	Record of counseling:  Advised of deficiency (responsibilities), notified of corrective actions and assistance available.  Applicant on unauthorized absence for 30 minutes.

991218:	Record of counseling:  Applicant on unauthorized absence 0600-0915, 991207 (3 hours and 15 minutes).

000125:	Applicant on unauthorized absence 0600-1000, 000125.  [Extracted from Report and Disposition of Offense(s), undated.]

000126:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000114, tested positive for cocaine.

000327:	Record of counseling:  Advised of deficiency (responsibilities/reliability), notified of corrective actions and assistance available.  Applicant woke up late and was stuck in traffic.

000416:	Record of counseling:  Advised of deficiency (responsibilities/reliability), notified of corrective actions and assistance available.  Applicant failed to report to work until 0915 on 000403.

000417:	Record of counseling:  Advised of deficiency (responsibilities/reliability), notified of corrective actions and assistance available.  Applicant failed to have adequate back-up child care measures.

000525:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

000714:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000717:	Commander, Navy Region, Mid-Atlantic directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

000721:	Psychological evaluation for drug abuse found the Applicant not drug dependent.

000731:	DD-214:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse.

Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000731 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that his discharge was improper because he never used illegal drugs.  Applicable regulations permit the upgrade of a discharge propriety grounds if it can be determined that the discharge is erroneous as a matter of fact, law, procedure, or discretion.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of rebutting this presumption by establishing his claims through the presentation of substantial and credible evidence to support his issue.  A review of the Applicant’s service record reveals the Applicant provided a urine sample that tested positive for the presence of cocaine.  Although there is no indication in the record the Applicant was awarded nonjudicial punishment or convicted at court-martial for drug abuse, his case was presented before an administrative discharge board.  After a review of all of the available evidence in the Applicant’s case, the administrative discharge board unanimously concluded that the Applicant committed misconduct due to drug abuse, that the Applicant should be separated by reason of his misconduct and that his separation should be under other than honorable conditions.  These findings and recommendations were ultimately approved by the Applicant’s commanding officer and the separation authority resulting in the Applicant’s discharge.  Aside from his statements to the contrary, the Applicant has submitted no evidence to rebut the findings of the administrative discharge board.  The Applicant’s statements alone do not overcome the administrative discharge board’s findings and the government’s presumption of regularity in this case.  As such, relief is not warranted.

The Applicant desires that the narrative Reason for Separation of “Misconduct” be removed from Block 28 of his DD Form 214.  The Applicant was processed by reason misconduct due to drug abuse.  An administrative discharge board heard the Applicant’s case and unanimously concluded the Applicant had committed the alleged misconduct.  As such, no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason for Separation simply because the Applicant desires it, would be inappropriate.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), 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 V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names, and votes of the members of the 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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.