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NAVY | DRB | 2002_Navy | ND02-00940
Original file (ND02-00940.rtf) Auto-classification: Denied


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

ex-DK2, USN
Docket No. ND02-00940

Applicant’s Request
The application for discharge review, received 020619, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030410. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) His violation of the UCMJ notwithstanding, this former member proffers that his overall service record supports recharacterization of service to fully honorable.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Applicant's dd F orm 215
 Application for graduation dated M arch 6, 2001
 Student's grade report
Letter from Dean of Academic and Student Affairs to Applicant dated May 7, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940915 - 940925  COG
         Active: USN                        940926 - 000923  HON

 Period of Service Under Review :
Date of Enlistment: 000924               Date of Discharge: 010808

 Length of Service (years, months, days):

         Active: 00 10 15
         Inactive: None

 Age at Entry: 32                          Years Contracted: 3

 Education Level: 12                        AFQT: 45

 Highest Rate: DK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.50 (2)                OTA: 3.15

 Military Decorations: NMCAM

 Unit/Campaign/Service Awards: GCM(2), NER, MUC, AFEM, NDSM, SSDR (2),
          ESWS, LOC(2)
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

000924:  Applicant reenlisted for 3 years on the USS NIMITZ (CVN 68).

 010309:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 010305, tested positive for cocaine.

010601:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010601:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

010604:  Commanding Officer, Personnel Support Activity, Norfolk, VA appointed
         members of an Administrative Board to address the Applicant's case.

 010606:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge with a characterization of general (under honorable conditions). ADB, by a vote of 2 to 1, recommended a 12 months suspension of the discharge.

010719:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer comments: "I strongly recommend that Petty Officer [Applicant] be separated from the Navy due to misconduct - drug abuse. I do not concur with the recommendation of the Administrative Board to suspend the separation of Petty Officer [Applicant]. Although it is clear that Petty Officer [Applicant]'s supervisors are extremely impressed by his work habits, that fact is the Board found that he committed misconduct due to drug abuse. I strongly believe that there is no place in the Navy for personnel who use illegal drugs under any circumstance and to retain Petty Officer [Applicant] would send the wrong message to our many hard working Sailors who do not use illegal drugs. I also do not concur with the Board's recommendation that the characterization of discharge be general (Under Honorable Conditions). The use of illegal drugs constitutes a severe departure from the conduct expected of members of the naval service and warrants a characterization of Under Other Than Honorable conditions."

010727:  COMNAVPERSCOM MILLINGTON TN directed the Applicant's discharge with a characterization of general (under 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 010808 general (under 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 Applicant, through counsel, contends that his service record warrants an honorable discharge. The Applicant's misconduct, as established by a unanimous vote at his Administrative Discharge Board and evidenced through a positive test for cocaine from a Naval Drug Laboratory, warranted processing for administrative separation normally under other than honorable conditions. In the Applicant's case, he received a characterization of general (under honorable conditions). The records the Board reviewed showed there to be no mitigating or extenuating factors or any entries so meritorious as to warrant an upgrade of the Applicant's discharge to honorable. Relief on this basis is therefore denied.

Issue 2: The Applicant, through counsel, contends that aspects of his post-service conduct to include continuing education should be considered in the recharacterization of his discharge. The NDRB is authorized to consider post-service factors in the recharac-terization of a discharge even though there is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understand-ing of the Applicant's performance and conduct during the period of service under review may be considered. Verifiable proof of 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, and certification of non-involve-ment with civil authorities are examples of documents that may be provided to the Board to receive consideration of relief based on post-service conduct. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade to his characterization of discharge. Relief on this basis is also denied.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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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