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NAVY | DRB | 2001_Navy | ND01-01196
Original file (ND01-01196.rtf) Auto-classification: Denied


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

ex-CMCR, USN
Docket No. ND01-01196

Applicant’s Request
The application for discharge review, received 010920, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020619. 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.

The NDRB did note an administrative error on the original DD Form 214. Block 4.a. should read" "CMCR" vice "CM" and Block 26, Separation Code should read: "HKK" vice "HKQ". The original DD Form 214 should be corrected or reissued as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 Dear Members of the Board

My name is T_ T_ (Applicant) and I am requesting to have my discharge upgraded. I was relieved of duty on December 23, 1999 and was given a General discharge with other than Honorable conditions for the unlawful use of drugs while in an active duty military status. Even though my only experience with drugs was to take a "hit" of LSD at the urging of my friends, it was wrong. I now have the opportunity to attend the Fire Department Academy but need to have my discharge upgraded to be qualified for the position with the fire department. I have matured since this incident and am looking forward to a career in which I can serve the community in which I live. Thank you for the opportunity to correct my past mistakes as a youth and give me the opportunity to help others. An upgrade in my discharge status will enable me to do this. Please note the attached letter from EMCS(SW) S. E. G_, as a personal reference.
Sincerely, (Signed by the Applicant)

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Personal Reference ltr from EMCS(SW) S.E. G_ dated 26 May 2001
Copy of DD Form 214 (4 copies)
Duplicate Copy of applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     981027 - 991104  COG

 Period of Service Under Review :
Date of Enlistment: 981105               Date of Discharge: 991223

 Length of Service (years, months, days):

         Active: 01 01 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 10                        AFQT: 54

 Highest Rate: CMCA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks Found in service record

 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 :

990820:  Applicant statement to Special Agent, NCIS.

 991020:  Investigation Report Memo from EMC(SW) S. G_, NCTC, Master-at-Arms Force.

991028:  NJP for violation of UCMJ, Article 112a: wrongful use and possession of a controlled substance.
         Award: Forfeiture of $537 per month for 2 months, restriction for 60 days, reduction to E-1. No indication of appeal in the record.
991102:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
991102:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
991117:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "I recommend SR (Applicant) receive an Other Than Honorable (OTH) discharge. SR (Applicant) knowingly used LSD at the Bachelor Enlisted Quarters. SR (Applicant) was interviewed by EMCS (SW) G_ and admitted to taking a hit of LSD from SR T_, placing it in his mouth and spitting it out because it tasted bad. SR (Applicant) has disregarded the Navy's zero tolerance policy on drugs. He is not suited for Naval Service."

991217:  Commander, Naval Air Warfare Center Weapons Division 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 991223 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 has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities as requested in the issue. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. The applicant used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country. 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 . 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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