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NAVY | DRB | 2003_Navy | ND03-00078
Original file (ND03-00078.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND03-00078

Applicant’s Request
The application for discharge review, received 20021017, 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. 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 20030912. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 respectfully request a Board review my record of service that led to my discharge classification for consideration of an upgrade to Honorable. Current events have rekindled my desire to defend my country and be honorably recognized for my prior military combat service. I have been motivated by the support of legal advisors, family, and senior military associates who have encouraged me to pursue a correction based on review of my case.
2.       As a Veteran of the Persian Gulf and U.S. Citizen, I have become a productive member of an established community that values military contributions. I never established a history of drug abuse and have lived an exemplary life since my discharge. My record is clean. The only blemish is the character of my discharge, which does not do justice to my years of dedicated service. In support of this, I have attached a list of endorsements from active and retired military personnel as well as members of my local community.
3.       I feel that my service, meritorious achievement and superior performance in the Persian Gulf with SEAL Team TWO it is in the best interest of the government to upgrade my character of service. This will enable me to apply my years of specialized warfare training, skills and dedication to support my country with future home defense efforts. I would like to carry an honorable message to future employers of home defense efforts as well as to members of my family. In restrospect, I should have accepted responsibility for my actions and on advice from others accepted orders and continued my service in the Navy. My prior decision was clouded by my loyalty to my unit, my youth and lack of real world experience, and my desire not to draw negative attention to others I served with. It is important to note, that I was considered suitable for assignments to a non-NEC billet and eligible for reinstatement to NEC5326. My pride in achieving the stringent physical requirements and self discipline it take to become an elite member of the Navy’s SEAL Teams overshadowed by better judgement to accept an alternative reassignment. I now concede that this would have been a reasonable solution to preserving the integrity of my unit and continue my service to my country. While I may be guilty of a moment of bad judgement, it should not justify a less than honorable life sentence when I gave so much honorable service in defense of my country.
4.       (VFW Issue) The Applicant was an outstanding performing sailor not withstanding his positive drug screening. He served as a navy seal. He was awarded the navy accommendation medal by SECNAV in 1987 for action in the Persian Gulf. He was also awarded the Combat Action Ribbon. In addition since discharge from service he has demonstrated excellent character as attested to by letters from individuals that know him. He is also very active in his community. We fully support his contentions that his discharge be upgraded. We ask that you consider SECNAVINST 5420.174C paragraph 9.3c (b) & (d), paragraph (d) should be considered because he was awarded the combat action ribbon.
 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
DD Form 149 (2 pages)
Letter of Response from Board for Correction of Naval Records dated August 23, 2002
Letter of Endorsement dated July 2, 2002 (2 pages)
Copy of DD Form 214
Copy of Navy Commendation Medal Citation
Copy of Navy Achievement Medal Citation
Copy of NEC Code Change Recommendation
Character Reference Letter dated June 15, 2002
Character Reference Letter dated May 24, 2002
Reference Letter dated September 19, 2002
Letter from Applicant dated November 11, 2002
Listing of Contributions to Community
Police Record Check from Escambia County Sheriff’s Office
Character Reference Letter dated November 11, 2002
Copies of Letter of Appreciation (2)
Letter of Congratulation for Armed Forces Expeditionary Medal for Persian Gulf
Letter of Congratulation for Combat Action Ribbon
Letter of Designation as Halo Parachutist
Letter of Qualification and Designation as Draeger LAR V Maintenance Technician
3 Partial Pages from Enlisted Evaluation Report
Copy of Evaluation of Participation in NADSAP
Copy of Statement from Applicant in reference to (2) positive urinalysis

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19850724 - 19850729      COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 19850730             Date of Discharge: 19890712

 Length of Service (years, months, days):

         Active: 03 11 13
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 47

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.64 (5)    Behavior: 3.68 (5)                OTA: 3.76

 Military Decorations: None

 Unit/Campaign/Service Awards: NAM, NUCR, Expert Pistol Ribbon, Expert Rifle Ribbon, SSDR, AFEM, CAR

 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 :

890120:  NAVDRUGLAB [Norfolk, VA], reported applicant’s urine sample, received 890111, tested positive for [THC].

890213:  DAAR indicates marijuana abuse as a result of a unit sweep urinalysis, dependency not determined, no recommendations made. Comments: Service member TAD to this command. Personal records maintained by parent command. Member returned to parent command for screening/disciplinary/administrative actions. Update report will be submitted by parent command upon completion of investigation/disciplinary action.

890605:  NAVDRUGLAB [Norfolk, VA], reported applicant’s urine sample, received 890518, tested positive for [THC].
890613:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by two incidents of wrongful use of tetrahydrocannabinol (THC) per NAVDRUGLAB Norfolk, VA 200450Z Jan 89 and NAVDRUGLAB Norfolk, VA 051351Z Jun 89.
890614:  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 and the right to submit statement on own behalf either verbally or in writing before an Administrative Board, or in writing if an Administrative Board is not convened.

890619:  DAAR indicates marijuana abuse as a result of a random urinalysis, found not dependent by Medical Officer, not eligible for treatment, recommended for separation not via VA hospital.
890619:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890629:  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 19890712 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).

Issues 1, and 2. The Applicant requests that the Board review his record of service that led to his discharge. The Applicant has a rekindled desire to defend his country and be honorably recognized for his prior military service. He also states he has become a productive member of an established community that values military contributions.

 Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No errors or inequities were discovered in the Applicant’s discharge process. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 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 understanding of the applicant's performance and conduct during the period of service under review can be considered. Examples of documentation to forward to the Board for consideration include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of substance free lifestyle. At this time, the applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.
Issues 3 and 4. The Applicant states his meritorious achievement and superior performance in the Persian Gulf with SEAL Team Two is in the best interest of the government to upgrade his discharge. He also states he was an outstanding performing sailor not withstanding his positive drug screening.

The Applicant used illegal drugs on two separate occasions. According to Navy regulations drug abuse requires mandatory processing for separation for all offices and enlisted persons. The Applicant was held accountable for his misconduct. The discharge was proper and equitable. Relief 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. 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 6, effective 11 Jan 89 until 13 Jun 90, 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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