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NAVY | DRB | 2003_Navy | ND03-00104
Original file (ND03-00104.rtf) Auto-classification: Denied


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

ex-AWAA, USN
Docket No. ND03-00104

Applicant’s Request
The application for discharge review, received 20021024, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized and the reason for the discharge be changed to General. 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 20030926. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Some issues renumbered:

 1. Isolated incident within 24 month period of active service.

2. Captain’s Mass was directed towards group of people (10 or more) no case same, same discharge for all – Captain’s Mass held at same time, no individual hearing.

3. Discharge rulings should have had individual background and accomplishments taken in to consideration in the final decision

4. I was told if I elected admin board, I would not receive the board until after my 6 month cruise was over. With AW rating, I lost my security clearance, therefore, I had no job.

5. Process of discharge was to fast. Once the Navy said I was guilty they would not give chance to prove my innocence.

6. When I was confronted with the results of the urine test, my superior officers stood behind me and agreed that I was innocent, I was told before Capt’s Mass, that they could speak on my behalf. During Capt’s Mass, they were not allowed.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, undated
Job/character reference, dated October 11, 2002
Police record check, dated October 21 , 2002
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19981015 – 19981206               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19981207             Date of Discharge: 20010201

 Length of Service (years, months, days):

         Active: 02 01 25
         Inactive: None

 Age at Entry: 18                                   Years Contracted: 4

 Education Level: 12                                 AFQT: 38

 Highest Rate: AWAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)                      Behavior: 4.00 (1)                OTA: 3.29

 Military Decorations: None

 Unit/Campaign/Service Awards: Flag Letter of Commendation

 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 :

000525:  Civil Conviction: General District Court, Traffic Division, Virginia Beach, VA for violation of reckless driving (84/55).
 Sentence: Fine $275, court cost $30, driver’s license suspended for 10 days.
001107:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 001031, tested positive for THC.

001122:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana.
         Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to AWAA. No indication of appeal in the record.
001122:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s nonjudicial punishment held on 22 November 2000 and misconduct due to civilian conviction as evidenced by conviction of 25 May 2000.
001122:  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.
010116:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and misconduct due to civilian conviction.) Commanding Officer’s comments (verbatim): On 25 May 2000, Airman Apprentice (Applicant) was found guilty in Virginia Beach General District Court of reckless driving. He was sentenced to pay a $275.00 fine, $30.00 court cost and his driver’s license was suspended for 10 days. On 22 November 2000, Airman Apprentice (Applicant) was awarded Commanding Officer’s Non-Judicial Punishment for a violation of UCMJ, Article 112a. Airman Apprentice (Applicant) denies use of marijuana and points to his use of various fitness supplements and an antibiotic as the possible causes for a positive urinalysis result. Enclosure (7) confirms that these compounds would not cause a positive urinalysis result showing THC. The only conclusion to be drawn from this information is that Airman Apprentice (Applicant) used marijuana which resulted in a positive urinalysis. The Navy’s policy with regard to drug abuse is clear and I cannot condone Airman Apprentice (Applicant’s) disregard for that policy. Hs actions are incompatible with Naval Service and prejudicial to good order and discipline.

010119:  COMCARGRU TWO 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 20010201 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 1-6: The Applicant states his discharge was based on one isolated incident in “24 months of service.” Even though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military does not view such offenses as minor infractions to maintain proper order and discipline. The Applicant’s service record is marred by a civilian conviction and by award of non-judicial punishment (NJP ) for illegal drug use, thus substantiating the misconduct for which he was separated. Even though t he Applicant feels his accomplishments and performance should’ve been taken into account by his Commanding Officer, his performance prior to the misconduct does not mitigate his illegal drug use . Drug abuse warranted processing for separation, normally under other than honorable conditions. The record is void of any evidence that the Applicant was not responsible for his conduct, he was treated unfairly or that he should not be held accountable for his actions. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. Relief denied.

Regarding the Applicant’s request to change the characterization of enlistment to uncharacterized or entry level separation, by regulation, only members discharged within the first 180 days of their first enlistment can be given this kind of discharge. Since the Applicant served in excess of 2 years, he cannot be given an uncharacterized or entry level separation. The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the he was discharged. To change the Narrative Reason for Separation would be inappropriate. 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, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.

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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