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NAVY | DRB | 2002_Navy | ND02-00595
Original file (ND02-00595.rtf) Auto-classification: Denied


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

ex-SMSN, USN
Docket No. ND02-00595

Applicant’s Request
The application for discharge review, received 020326, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030107. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I recently purchased a home utilizing a VA Loan. I received my certificate of eligibility on 11 Sep 00. My mortgage company requested a new certificate be sent as the original is over a year old. I have tried 2 times to get a new copy but they told me they can't issue one because of my discharge type. Why the change all of a sudden? I am in my home now because I thought I could get a VA Loan and now I am stuck. Could you please upgrade my discharge so I can get a new eligibility form. I am asking for general as this should be enough to straighten things out. Thank you for your time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of Certificate of Eligibility from Dept of Veterans Affairs

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     860630 - 861102  COG

 Period of Service Under Review :
Date of Enlistment: 861103               Date of Discharge: 901228

 Length of Service (years, months, days):

         Active: 04 01 26
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 63

 Highest Rate: SM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.48 (5)    Behavior: 3.44 (5)                OTA: 3.44

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, GCA

 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 3630620.

 Chronological Listing of Significant Service Events :

901115:  NJP for violation of UCMJ, Article 112a: Wrongful use of some amount of marijuana on or about 901101 at or near Alameda, CA as evidenced by SNM's self admission on 901113.
         Award: Forfeiture of $481.00 pay per month for 2 months, restriction to USS NIMITZ for 60 days, reduction to E-3. No indication of appeal in the record.
901123:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by service record [Extracted from CO's message].
901123:  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 [Extracted from CO's message].

901124:  Medical Officer's evaluation states Applicant is an alcohol abuser without dependence and is a drug experimenter.
901127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) as evidenced by violation of UCMJ, Article 112a, wrongful use of marijuana on or about 901101. SNM made a sworn statement to command investigator. SNM's admission further corroborated by an eye witness statement.

901217:  CNMPC 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 901228 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 Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans’ benefits. This issue does not serve to provide a foundation upon which the Board can grant relief, therefore, relief denied.

The following is provided for the Applicant’s information: Drug abuse warranted processing for separation, normally under other than honorable conditions. 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 " afls14.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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