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NAVY | DRB | 2002_Navy | ND02-00801
Original file (ND02-00801.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND02-00801

Applicant’s Request
The application for discharge review, received 020515, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030214. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

To whom it may concern,

I respectfully request for your time and consideration of my situation that has by chance fallen on my military path. The discharge I received was based on one isolated incident throughout my 20 months of service. I am sending three documents along with this application form to let you know what type of person I am.

The first document will show that I was among the top of my classes. The second document are college credits that I am Using to earn myself an Associates of Arts degree to excellerate my education. The third document is the standard Evaluation Report given upon being discharged.

I assure that every urinalysis test have taken was completed without hesitation for I know I would pass. When I failed and tested positive, I was on leave during Thanksgiving week 2001. I returned for my duty day between the two week break and was informed at 0800 of a duty section urinalysis test. I complied and did it at around 0930-1000. A week before I had done a random urine test and passed as always. When I came off leave The Master at Arms of the base informed me of my last test results. I stated I had been out the night before and consumed alcohol at a party in Long Beach. He was convinced that my drinks were mixed with drugs. I clearly stated I did not know because I knew that if I did drugs I would have been kicked out of the Navy.

I did not enlist to fool around, I did it to serve. I accepted the Nonjudicial Punishment for no other reason but hearing that I will be sent back my home in Guam which at the time meant the world to me for I would be able to see my family. I now know that I still want to have a military career. I had a paygrade of E4 with four N.E.C.s all in less than two years. I had a good start but it ended so quickly. I ask the board to review all records that they have on me. The Navy instilled upon me Honor, Courage, and Commitment. I have not forgotten them, I use them daily to attain what I have lost. Thank you for your patience and time.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Performance Information Memo from Head, Electronics Training Dept, FTC, San Diego, dated September 10, 1999
Applicant's Military Course Summary
Applicant's Enlisted Performance Evaluation (00FEB09 to 01OCT25)
 Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000107 - 000208  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000209               Date of Discharge: 011026

 Length of Service (years, months, days):

         Active: 01 08 18
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 68

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                  Behavior: 1.0 (1)                 OTA: 1.0 (5.0 scale)

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

 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 :

000107:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted.

010817:  NAVDRUGLAB San Diego Report: Urine sample received on 14AUG01, positive for Methamphetamine.
010906:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
Award: Forfeiture of $584 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
010907:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010907:  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.
011002:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [Processing in the case of ETSN (Applicant) was initiated subsequent to his CO's Nonjudicial Punishment for violation of the UCMJ, Article 112a - Wrongful use of controlled substance (Methamphetamine). ETSN (Applicant) is aware of the Navy's Zero Tolerance Policy. A hindrance to good order and discipline, he is recommended for an expeditious separation from the Navy with an Other Than Honorable Discharge by reason of Misconduct due to Drug Abuse.]

011010:  Commander, Navy Region Southwest, San Diego, CA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

011016:  Licensed Independent Provider, Substance Abuse Rehabilitation Dept (SARD), NavMedCen San Diego: Service member assessed as not meeting diagnostic criteria for drug abuse per the Diagnostic nad Statistical Manual of Mental Disorders (DSM-IV).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 011026 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 the Applicants discharge proper and equitable. Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. The Applicant’s summary of service is marred by award of non-judicial punishment (NJP) for wrongful use of a controlled substance. Although the Applicant claims the drugs were mixed in with his drinks, at the time, the Applicant did not appeal his NJP or avail himself of legal counsel. By the Applicant’s own admission: “I accepted the Nonjudicial Punishment for no other reason but hearing I will be sent back home in Guam which at the time meant the world to me for I would be able to see my family.” The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. 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. An upgrade to honorable would be inappropriate. Relief denied.

 The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. Therefore, the Board cannot grant relief on this issue.

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. Furthermore, t here 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. At this time the Applicant has not provided sufficient documentation of good character and conduct. Relief denied.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until Present, 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 " 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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