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NAVY | DRB | 2002_Navy | ND02-01161
Original file (ND02-01161.rtf) Auto-classification: Denied


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

ex-AEAA, USN
Docket No. ND02-01161

Applicant ’s Request
The application for discharge review, received 020814, 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 list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030501. 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

1. My mother was sick with breast cancer while I was in the Navy. The overwhelming stress and pressure of my situation, led me to make a mistake. My mother passed after I got out of restriction and the Navy. Now I have two small children to help take care of, and furthering my education would be the biggest help I could give in concern with there futures. The change of my discharge would allow me to receive my GI Bill which I need very desperatly .

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     981208 - 990119  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990120               Date of Discharge: 010209

 Length of Service (years, months, days):

         Active: 02 00 20
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 69

 Highest Rate: AEAN

 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: 3

 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 :

990901   Applicant reported to VF-101, NAS Oceana, VA for duty.

001107:  NAVDRUGLAB, Norfolk, VA, reported Applicant 's urine sample, received 001026, tested positive for THC.
001213:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance on 001020, to wit: THC.
         Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to AEAA. No indication of appeal in the record.
001213:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
001213:  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.
010109:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

010110:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010129   Applicant to unauthorized absence.

010131:  COMNAVAIRLANT Norfolk, VA directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

010201   Applicant surrendered onboard VF-101.

010209   Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010209 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: Although the Applicant claims he made a mistake due to the overwhelming stress and pressure of his mother ’ s illness, 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. Drug abuse (use) warranted processing for separation, normally under other than honorable conditions. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge. The NDRB has no authority to upgrade a discharge for the sole purpose of improving the opportunities for a better life as requested by the Applicant. Furthermore, the Veteran ’ s 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 veteran ’ s benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Relief denied.

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 lifestyle, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged. 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 27, effective 27 March 2000 - 11 Feb 2001, 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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