Search Decisions

Decision Text

NAVY | DRB | 1999_Navy | ND99-00431
Original file (ND99-00431.rtf) Auto-classification: Denied


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

ex-STSSN, USN
Docket No. ND99-00431

Applicant’s Request
The application for discharge review, received 990208, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000121. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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 – Drug abuse(use), authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.       I was denied my rights to an administrative board. As such the least favorable characterization of my discharge should be honorable.
2.       Bupers did not receive the positive endorsements from my command. As such my record was incomplete when reviewed by the separation authority.
3.       I can't get the medical treatment I need for the injuries I received while on active duty.
4.       I am unable to get sufficient job needed to run my household.
5.       I am unable to get a house due to me not being eligible for the home loan certificate from VA.
6.       I am unable to get a newer car for a high risk factor.
7.       It's very difficult getting into school due to me not being eligible for my Navy College Fund to compensate for the expense.
8.       My discharge was inequitable because it was based on one isolated incident with no adverse action.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from applicant (2pgs)
Letters from LT M___ A. J____ Naval Legal Service Office (2)
Copy of Pretrial Agreement (5pgs)
Letter from LT. M___ A. J____ Naval Legal Service Office
Copy of Abbreviated Limited Duty Medical Board Report
Letters of Recommendation (2)
Copy of Notification of Rights (3pgs)
Copy of Bupers Message
Letter of Commendation
Letters of Appreciation (3)
Copy of Outstanding Performance Citation
Petty Officer Third Class Authority Letter
Incident/Injury Report (2pgs)
Thank you letter from Government Counsel

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     950331 - 950531  COG

 Period of Service Under Review :
Date of Enlistment: 950601               Date of Discharge: 980428

 Length of Service (years, months, days):

         Active: 02 10 28
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 62

 Highest Rate: STG3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Drug abuse(use), authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

980211:  Pre-Trial agreement indicates in an Special Court-Martial, after consulting with counsel, applicant agreed to enter a voluntary plea of guilty to the charge of violation of UCMJ, Article 112a, wrongful use of marijuana, providing that the charge and specification brought against him are withdrawn from a Special Court-Martial and that the same charge and specification is referred to an Article 15, Non-Judicial Punishment proceeding.

980226:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Award: Forfeiture of $554 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record

980303:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO's NJP on 26 February 1998 as documented in service record {Member refused to sign, extracted from case file}.
980303:          Applicant advised of his rights {Member refused to sign, extracted from case file}.
980310:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

980316:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use)

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 980428 under other than honorable conditions for misconduct due to drug abuse (use) (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In response to applicant’s issue 1, the Board found that the applicant’s pre-trial agreement became null and void when the applicant pleaded “not guilty” at Captain’s Mast. The applicant could have refused NJP at that point but did not. According to OPNAVINST 5350.4B, administrative board procedures are not required for cases involving service directed urinalysis. The Board will not grant relief on the basis of this issue.

In response to applicant’s issue 2, the applicant’s positive endorsements from his previous command would have had no impact on the separation authority’s decision involving a drug abuse case.
In response to applicant’s issues 3 – 7, the Department of Veterans Affairs (DVA) is a separate agency that makes its own determinations on VA eligibility. There is no requirement or law that grants recharacterization based solely on the issue of obtaining veteran's benefits. Also, the Board has no obligation to change the applicant's discharge in order to allow him to go back to school or to obtain better employment.

In response to applicant’s issue 8, the applicant implies that a permissive doctrine exists whereby one in the military is allowed "one isolated incident". The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. Relief denied.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


Similar Decisions

  • NAVY | DRB | 2000_Navy | ND00-00621

    Original file (ND00-00621.rtf) Auto-classification: Denied

    The Navy proceeded with the discharge and I was given a general discharge under Other than Honorable conditions. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 981102 under Other Than Honorable conditions for misconduct due to Drug abuse (Use) (A). 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...

  • NAVY | DRB | 2001_Navy | ND01-00797

    Original file (ND01-00797.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Letter from A___ M. M___ (Lee County Veterans Affairs Officer) Reference Letters (3) Copies of DD Form 214 (2) Copy of Police Record Check Letter PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USN None Inactive: USNR (DEP) 951221 - 960625 COG Period of Service Under Review :Date of Enlistment: 960626 Date of...

  • NAVY | DRB | 2001_Navy | ND01-01127

    Original file (ND01-01127.rtf) Auto-classification: Denied

    In the acknowledgement letter to the applicant, she was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. No indication of appeal in the record.000929: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.000929: Applicant advised of his rights and having chosen not to...

  • NAVY | DRB | 2001_Navy | ND01-00231

    Original file (ND01-00231.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Yes, I continued to use drugs for about a month after I was discharged, that's how long it took me realize what I have lost. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).The applicant’s issue describes the circumstances surrounding his discharge and that he has been drug free for “about five months.” The Board...

  • NAVY | DRB | 2000_Navy | ND00-00009

    Original file (ND00-00009.rtf) Auto-classification: Denied

    In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.The NDRB did note an administrative error on the original DD Form 214. After a thorough review of the records, supporting documents, facts, and...

  • NAVY | DRB | 2002_Navy | ND02-00091

    Original file (ND02-00091.rtf) Auto-classification: Denied

    The applicant requested a documentary record discharge review. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Letter from Applicant Copies of DD Form 214 (4) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USN None Inactive: USNR (DEP) 000128 - 000207 COG Period of Service Under Review :Date of Enlistment: 000208 Date of Discharge: 010327 Length of...

  • NAVY | DRB | 2003_Navy | ND03-00629

    Original file (ND03-00629.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing, also advised that the Naval Discharge Review Board (NDRB) does not travel, and that all hearings are held in the Washington, D.C. area. Chronological Listing of Significant Service Events...

  • NAVY | DRB | 2003_Navy | ND03-00364

    Original file (ND03-00364.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Based on the previous and my Commanding Officer’s request for me not to accept the Admin Review Board’s decision I agreed to be separated. The Applicant's misconduct is clearly documented, and mandatory processing for separation is required for sailors who abuse illegal drugs.

  • NAVY | DRB | 2000_Navy | ND00-00676

    Original file (ND00-00676.rtf) Auto-classification: Denied

    I am trying to get back into the service, attend college, straighten out my life, but for past two months I haven't gone far. Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Letters from Applicant (2) Photograph Copies of DD Form 214 (2) PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: USN None Inactive: USNR (DEP) 990204 - 990217 COG Period of Service...

  • NAVY | DRB | 2002_Navy | ND02-00509

    Original file (ND02-00509.rtf) Auto-classification: Denied

    After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).The Applicant contends he was young and ignorant when he entered the Navy. The Applicant’s use of drugs, which forms the primary basis for determining the character of his service, reflects his willful use of a controlled substance and falls short of that required for an upgrade of his characterization of service. ...