Upgrade.Vet

NAVY | DRB | 2001_Navy | ND01-00743

Original file (ND01-00743.rtf) Auto-classification: Denied

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

ex-PCSN, USN
Docket No. ND01-00743

Applicant’s Request

The application for discharge review, received 010508, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020307. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. In August of 1997 I enlisted in the U.S. Navy, where then I completed boot camp, postal "A" School in South Carolina. I then transferred to my permanent duty station in Norfolk, VA. Aboard the U.S.S. JOHN C. STENNIS (CVN-74). I made E-2 and set out on a six month world cruise from Norfolk, VA around the world to San Diego the ships homeport change. During this cruise I was awarded the Navy Unit Commendation, the Armed Forces Expeditionary Medal, and a personal Letter of Commendation. I then made E-3 before my return to the States. Following my return to the U.S. I sustained a left knee injury wh8le playing rugby for the U.S.S. JOHN C. STENNIS All Navy Rugby team, I participated with this team in addition to my regular duties with the U.S. Navy. I underwent total reconstructive surgery of my left knee in 1998. Following this surgery I participated in physical therapy and was prescribed medications for pain. The injury required a second surgery due to bone fragments that were left in the knee. The Naval medical staff discontinued the use of prescribed pain medication prior to the second surgery at which time I used marijuana as self medication in attempts to aleviate the pain I continued to experience. I then realized that continued use would result in an undesired addiction. I then requested through chain of command o be voluntarily placed in rehabilitation. At no time during my military career had I been found tested positive for drug use other than at my own admission. I then remained in the rehab program. And upon successful completion. I was advised that I could remain on active duty pending a captains mast, or recieve a general discharge which would be upgraded to honorable after six months. Since my discharge I've remained drug free and am working full time and wish to pursue my educational goals with the assistance of the G.I. Bill. I am therefore requesting an upgrade of my discharge based on the information I have provided which is also reflected in my military personal files which you have on record.
I am currently supporting a family and feel a discharge upgrade will greatly increase my ability to secure a better life for my family and a successful career. This upgrade will also allow me to be proud of my military service. I feel that further review on your part will reveal that a general discharge is clearly inappropriate for a person who voluntarily sought help.

2. Dear Chairperson:

After review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review. We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant. Respectfully, Mr. (applicant) request a discharge upgrade from his current status of General Under Honorable Conditions to a Honorable discharge.

Mr. (applicant) enlisted in the United States Navy in August 1997. His service is characterized by expedient promotions and outstanding proficiency and conduct evaluations. Mr. (applicant) not only excelled at his Navy duties but, within extracurricular activities as well. As part of his extracurricular activities Mr. (applicant) was a member of the All Navy Rugby Team. It was his participation with this team that led to his left knee injury. In 1998, Mr. (applicant) suffered a substantial knee injury requiring reconstructive surgery. After being discharged from the hospital Mr. (applicant) was placed on pain medication. Due to complications with the knee surgery he was advised that a second surgery would be necessary. Prior to the second surgery Mr. (applicant) was taken off his pain medication. The pain that was caused by his injury was to extreme for Mr. (applicant) to with stand. Subsequently, he began to use marijuana to relieve the pain. Mr. (applicant) realized his error and sought treatment through his chain of command. Mr. (applicant) was self admitting to his problem, he did not wait for a random urinalysis to uncover his secret. Upon completion of his rehabilitation Program Mr. (applicant) was informed by his command that he had two choices, he could either go back to active duty and await a for an upgrade within six months. Not knowing the implications of either avenue chose to take the discharge.
It is our contention, as his service representative, that Mr. (applicant) was at that time and is now entitled to an Honorable discharge as described in SECNAVINST 5420.174C, 1.9(a). It is further noted that since discharge Mr. (applicant) has remained drug free and has gainful employment. In light of these circumstances we respectfully urge the Board to reconsider the character of Mr. (applicant's) discharge.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

         Active: None
         Inactive: USNR (DEP)     970130 - 970806 COG

Period of Service Under Review :

Date of Enlistment: 970807               Date of Discharge: 000616

Length of Service (years, months, days):

         Active: 02 10 10
         Inactive: None

Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: Unreadable

Highest Rate: PCSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 1.83

Military Decorations: None

Unit/Campaign/Service Awards: NUC, AFEM, Letter of Commendation

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events :

000616: DD Form 214: GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000616 general (under 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).

Issue 1. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. Relief denied.

Issue 2. The Board found not evidence in the applicant’s official records nor did the applicant provide any documentation to show that his military service was outstanding at any time. The available performance evaluation was substandard. While he may feel that his knee pain was a factor that contributed to his actions, the record clearly reflects his willful disregard for the requirements of military discipline. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

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 5420.174C 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls10.jag.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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023
____

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NAVY | DRB | 2001_Navy | ND01-00743

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