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NAVY | DRB | 2002_Navy | ND02-00874
Original file (ND02-00874.rtf) Auto-classification: Denied


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


ex-ENS/2905, USNR
Docket No. ND02-00874

Applicant’s Request
The application for discharge review, received 020607, 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. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT - DRUG ABUSE, authority: SECNAVINST 1920.6A and BUPERS 0972 DTD 6 APR 92.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as submitted

1. My voluntary separation for honorable discharge was in process and I was off duty when the infraction occurred. I did not contest the change to general discharge under honorable conditions. I was unaware that this change would forfeit my educational benefits. This was the only infraction during my entire service. I voluntarily enlisted to serve during Desert Storm as a Naval Nurse. I did not resign my commission until well after Desert Storm. I believe I should be eligible for the entire $3600.00 educational benefits. However, I paid $1200.00 of my salary is good faith and should at least receive this amount (plus interest). Thank you for your review. (Signed by the Applicant)
Submitted by VFW:
2. We concur with the Applicant contention that his discharge be upgrade to Honorable. We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to Honorable.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Applicant's pay record dated 5/21/2000
 Applicant's VA Enrollment Certification for Schooling dated 10/26/01

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None
Period of Service Under Review :
Date of Commission: 900630      Date of Discharge: 920415

 Length of Service (years, months, days):
         Active: 01 08 16
         Inactive: 00 00 40
Age at Entry: 36                          Years Contracted: 8

 Education Level: 16     

Highest Rate: ENS

 Final Officer Performance Evaluation Averages : All Officer performance reports were available to the Board for review.
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Nonjudicial Punishments(s) : 1    Court(s)-Martial : None

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT - DRUG ABUSE, authority: SECNAVINST 1920.6A.
Chronological Listing of Significant Service Events :

900719:  Selected for appointment as a Nurse Corps Officer on the active duty list.
900810:  Commenced 6-week Officer Indoctrination Course, NETC, Newport, R.I.
900921:  Completed Officer Indoctrination Course.
920130:  CHNAVPERS issued separation orders. Applicant found not physically qualified to perform duties by the Physical Evaluation Board, as approved by SECNAV on 22 Jan 1992.
920219:  Preliminary Inquiry Report: Interview conducted with Applicant and when informed of his positive urinalysis results, Applicant admitted to smoking marijuana.
920221:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance. Specification: did, at a place unknown, on or about 3 January 1992 to 3 February 1992, wrongfully use an unknown amount of marijuana, a Schedule I controlled substance.
         Award: Reprimand in writing.
920227:  Punitive Letter of Reprimand issued to Applicant.
920227:  Applicant waived his rights to appeal the action and declined to submit a statement concerning the Letter of Reprimand.
920228:  Applicant tendered his resignation in lieu of administrative discharge processing for drug abuse and certified that if accepted, he would receive a certificate of general discharge from the naval service. The Applicant understood that a discharge under honorable conditions (general) is not the highest qualitative type of separation, and that while he may be entitled to the major portion of veteran's rights and benefits presently authorized for former officers whose service has been similar to his own, should any present or future statute specifically require honorable discharge as a condition precedent to the granting of rights or benefits thereunder, his eligibility for such rights and benefits may at least be doubtful.
920228:  CO, Naval Hospital, Pensacola recommended to SECNAV via CHNAVPERS approval of Application's qualified resignation.

 920305:  PEB terminated proceedings due to requirement for mandatory processing for administrative separation for drug abuse.

920310:  Report of Nonjudicial Punishment submitted to CHNAVPERS. Applicant afforded all rights and declined to submit statement regarding the Letter of Reprimand and did not intend to file an appeal of his NJP. Command advised that at the time of Applicant's NJP he was on separation leave awaiting a medical discharge for a psychiatric condition existing prior to service and the separation orders were canceled.

920316:  CHNAVPERS recommended to SECNAV approval of his resignation request and to separate him from the Naval Reserve with a General discharge by reason of misconduct - drug abuse.

920320:  SECNAV (ASN (M&RA) directed the Applicant's discharge under honorable conditions (general) by reason of misconduct - drug abuse

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 920415 under honorable conditions (general) due to misconduct - drug abuse (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).
Issues 1 and 2. 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. Drug abuse warranted processing for separation, normally under other than honorable conditions. Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident 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. Relief not warranted.
The Applicant 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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)
A. Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999 establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.
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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