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NAVY | DRB | 2001_Navy | ND01-01058
Original file (ND01-01058.rtf) Auto-classification: Denied


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


ex-FA, USN
Docket No. ND01-01058

Applicant’s Request
The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues

 1. I E___ D. Z_____ respectfully request an upgrade of my military discharge to an honorable or general under honorable conditions. I have been recently diagnosed with Social Anxiety Disorder and was told by psychiatric nurse M____ K____ MSN A.R.N.P. that she strongly believes that I have had this problem since childhood.
 I did not know the reasons why I was depressed during my military service, Nor did I know why my disciplinary actions stated that I had significant personal problems. I have owned my own lawn service from 1999 to 2000, I have also been merchandise sale representative 1998-199. I have also started going to Tacoma Community College at Tacoma Washington taking up pre-law. I have not been in any trouble with the civil police nor military police since day of discharge. I need medical attention for my social anxiety disorder. Again I would respectfully request an upgrade of my military discharge, preferably Honorable, or general under honorable conditions.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (3)
Letter from Applicant
 Copy of Tacoma Community College Acceptance Letter
 W2 Statement (2pgs)
Business and Occupation Tax Statement

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
          Inactive: USNR (DEP)     930526 - 930714  COG

 Period of Service Under Review :
Date of Enlistment: 930715               Date of Discharge: 970214

 Length of Service (years, months, days):
         Active: 03 06 29
          Inactive: None
Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: 54
Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.44 (5)    Behavior: 3.56 (5)                OTA: 3.57 (4.0 Evals)
 Performance: 3.00 (1)    Behavior: 1.00 (1)                OTA: 2.67 (5.0 Evals)
Military Decorations: None
Unit/Campaign/Service Awards: NDSM, SSDR, BATTLE"E"RIBBON, CGSOSM

 Days of Unauthorized Absence: 9
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.
Chronological Listing of Significant Service Events :

930730:  You are being retained in the naval service, despite of your defective enlistment and induction due to fraudulent entry into the naval service as evidenced by your failure to disclose your preservice civil involvement: Public Indecency/Sexual Misconduct in January 1991 in Little Rock, Ar; Awarded 2 months unsupervised probation and $750.00 fine (Paid).
951023:  Retention Warning: Advised of deficiency (Domestic violence on 951017), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960207:  To UA.

 960216:  From UA (9days/S).
960229:  NJP for violation of UCMJ, Article 86: Going from appointed place of duty, and 2 specification of UA from unit.
         Award: Forfeiture of $100.00 per month for 1 month, 30 days restriction to USS SACRAMENTO (AOE-1) with 30 days extra duty, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
960611:  Retention Warning: Advised of deficiency (You were recently arrested for driving while intoxicated. Although this arrest may or may not ultimately result in a conviction against you for DWI, the mere fact that you were suspected and subsequently arrested for said offense is extremely prejudicial to good order and discipline and such conduct will not be tolerated), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970109:  NAVDRUGLAB, SAN DIEGO CA, urinalysis report indicates applicant tested positive for THC.

970113:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance on or about 961216.
Award: Forfeiture of $505.00 per month for 2 months, restriction to the limits of USS SACRAMENTO for 45 days, and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
970114:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by violating Article 112a, UCMJ, wrongfully use a controlled substance; and misconduct due to pattern of misconduct as evidenced by two or more nonjudicial punishments within the current enlistment.
970114:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
970116:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to a pattern of misconduct.

970128:  Commander, Naval Surface Group Pacific Northwest authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).
970210:  DAAR indicates marijuana abuse as a result of a random urinalysis.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970214 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 Veterans Administration 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. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. 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 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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