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NAVY | DRB | 2001_Navy | ND01-00884
Original file (ND01-00884.rtf) Auto-classification: Denied


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


ex-ETSR, USN
Docket No. ND01-00884

Applicant’s Request
The application for discharge review, received 010625, 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 020110. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620. Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

1. I was given a Captain's Mast because I failed a urinalysis test for Cannabis residue. The Captain's Mast gave me a General Discharge Under Other than Honorable Conditions. I feel that this discharge was unwarranted for the following reasons: I had never had a history of drug abuse of any kind. I was in "A" School for Electronic Technicians. The reason I failed the urinalysis was because the night before I was tested I had been a Disk Jockey at a local establishment for several hours. There were many people there dancing and partying. I did not know that Marijuana was being smoked during the time that I was working. Evidently I breathed enough second hand marijuana smoke to show positive on my urinalysis test 6 hours after leaving the DJ job.
I am now 20 years old. I did not want to be dismissed from the Navy. I most certainly did not want to receive a bad discharge. I was not represented by counsel at my Captain's Mast. I expected the Mast to believe the truth that I told them. Please upgrade my discharge to Honorable to rectify this miscarriage of justice. Also, my DD 214 does not show that I graduated from Advanced Electronics Course. It should show that.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Character reference letter dated July 13, 2001
 Character reference letter dated July 18, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     980605 - 990531  COG
Period of Service Under Review :
Date of Enlistment: 990601               Date of Discharge: 000706

 Length of Service (years, months, days):
         Active: 01 01 06
          Inactive: None

 Age at Entry: 18                          Years Contracted: 4
Education Level: 12                        AFQT: 84

 Highest Rate: ETSA
Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 0.00 (0)    Behavior: 0.00 (0)                OTA: 0.00

 Military Decorations: None
Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 12
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 :

000531:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 1400, 3May00 to 1850, 8May00 (5 days/ ), (2) Unauthorized absence from 0600, 18May00 to 0058, 21May00 (2 days/), violation of UCMJ, Article 112A: Wrongfully use marijuana between 9Apr00 and 9May00.
         Award: Forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days, reduction to ETSR. No indication of appeal in the record.
000601:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000601:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
000606:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
000608:  Commander, Naval Training Center, Great Lakes directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
000630:  Applicant to unauthorized absence 1215, 30Jun00.

 000706:  Applicant from unauthorized absence 0800, 6Jul00 (5 day/discharged in absentia).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000706, in absentia, 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).
Issue 1. The Board found no certification in the applicant’s official record that the applicant completed the Advanced Electronics Course, therefore the Board is not requesting a change to the applicant’s DD214.
The Board found that a positive urinalysis constituted drug abuse. Drug abuse warranted processing for separation, normally under other than honorable conditions. The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. 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 discharge was proper and equitable. Relief denied.

 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. However, 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 clemency, 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 24, effective 20 May 99 until 26 March 2000, 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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