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NAVY | DRB | 2003_Navy | ND03-00209

Original file (ND03-00209.rtf) Auto-classification: Denied

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

ex-OS2, USN
Docket No. ND03-00209

Applicant’s Request

The application for discharge review, received 20021122, 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 20031010. 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 stated

1. “Why do I feel as though I deserve an upgrade, honestly deserve is a bit strong for me because once we do something wrong who’s to say that we will get a second chance to correct what ever has occurred. I would just hope the six years that I did serve will speak for themselves. My actions were that of a person who had nothing to lose or didn’t care, in which it was just the opposite. I have lost everything and put my kids in a situation that didn’t have to be. I have enjoyed serving my country. It felt like a reward to myself being able to serve. I only wish that I can be given the chance to redeem myself and try to reclaim my life. I enjoy being a motivator for other people it feels good to know that people see me as dependable and reliable person. I am unsure if it would have effected me differently if it had just been myself, reality I’m not alone and my own selfishness has caused the kids to suffer. Even if I don’t receive a upgrade, I have learned a valuable lesson behind this incident. I can recall a time where I put myself before my kids. Here is a situation where I did, meaning I had allowed myself to become selfish without realizing it, also allowing myself to lose focus on my goals in life. While I felt alone after a 5 year relationship and feeling as though I couldn’t endure the hardship and didn’t know what to do before I ever do something as this again or try something to get a clearer perspective on things, in fact I feel as though I have incarcerated myself. All I ask is for a second chance.”

Documentation

In addition to the service record, the Applicant’s discharge package was not available to the Board. The following additional documentation was submitted by the Applicant, and considered by the Board:

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19960213 – 19960305      COG
         Active: USN                        19960306 – 20000206      HON

Period of Service Under Review :

Date of Enlistment: 20000207             Date of Discharge: 20011226

Length of Service (years, months, days):

         Active: 01 10 19
         Inactive: None

Age at Entry: 28                          Years Contracted: 6

Education Level: 11 (GED)                          AFQT: NMF

Highest Rate: OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: NMF                  Behavior: NMF             OTA: NMF

Military Decorations: None

Unit/Campaign/Service Awards: ESWS, EAWS, GCM, SSDR

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 :

000207: Reenlisted on board USS BATAAN (LHD5) for 6 years.

010516: Civil Conviction: [General District Court] for Petty Larceny, Disturbing the Peace, Destroy property.
Sentence: Petty Larceny Charge: $75.00 fine plus court costs. Disturbing the Peace: $100.00 fine plus court costs, 60 days in jail (suspended), UNSUP probation (2yrs), Destroying property: $100.00 fine plus court costs, 15 days in jail (suspended), UNSUP probation (2yrs).

NO DISCHARGE PACKAGE AVAILABLE.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011226 under other than honorable conditions for misconduct due to drug abuse (use) (A), as indicated on his DD Form 214, block 26. The Applicant’s discharge package was not available for review, therefore, 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 states that she hopes the 6 years that she served her country will speak for themselves. She wants a second chance to redeem herself and end her children’s suffering. She was once selfish and now is a dependable person who puts her children first.

The Applicant’s discharge package was not available to the Board, therefore, the Board assumes regularity in the conduct of governmental affairs. Additionally, the Applicant did not provide any documentation, which shows she is a dependable person, for the Board to consider.

Normally, to permit relief, an error or inequity must have occurred during the execution of the discharge for the period of enlistment in question. No errors or inequities were discovered during the execution of this discharge. 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 include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate). At this time, the applicant has not provided any documentation for the Board to consider. Therefore, no relief will be granted.

The applicant is reminded that she is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at 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

BOARD MEMBERS RECORD OF VOTE

______________________________________________________________________________
NAME                                CHARACTER OF SERVICE              REASON FOR DISCHARGE

T. Galvin, COL, USMC             NO CHANGE                                   NO CHANGE
Presiding Officer

W. F. Eckert, CAPT, USN          NO CHANGE                                   NO CHANGE
Member

T. B. Duncan, MAJ, USMC                   NO CHANGE                                   NO CHANGE
Member

M. Cunningham, LT, USN           NO CHANGE                                   NO CHANGE
Member

W. Burke, CDR, USN                         NO CHANGE                                   NO CHANGE
Recorder

Recorder’s Signature:_____________________________________________

Presiding Officer’s Signature:____________________________________

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 01 until 21 Aug 02, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse, states:
________________________________________________________________________

Responsible
Office

NAVPERSCOM
(PERS-832)

Phone: DSN
COM
FAX

882-4438
(901) 874-4438
882-2624

________________________________________________________________________

Governing
Directive

OPNAVINST 5350.4C

________________________________________________________________________

1. Policy

a. Processing is mandatory for the following:

         (1) Positive urinalysis that was tested and confirmed positive at a Navy Drug Screening Lab (NAVDRUGLAB) or other DOD-approved lab. If the commanding officer determines that the urinalysis result was caused by administrative errors (e.g., faulty local chain of custody, evidence of tampering) or the drug use was not wrongful (e.g., prescribed medication, unknowing ingestion), then the member shall not be identified as a drug abuser and the positive urinalysis is not a drug abuse incident . When this determination is made the command shall notify, via official correspondence, Navy Personnel Command (PERS-6) and the command's immediate senior in command of the circumstances that warranted such a determination.

         (2) Admission of drug use.

         (3) One or more military drug related offense(s).

         (4) Nolo contendere, no contest plea in civil courts.

         (5) Civil conviction for a drug related offense(s).

         (6) Actions tantamount to findings of guilt in civil courts:

         (a) Deferred prosecution

         (b) Entry in pretrail intervention program

b. Drug related offenses include the following:

         (1) Drug Abuse - illegal or wrongful use, possession of controlled substances.

(2) Drug Paraphernalia - all equipment, products, and materials that are used, intended for use, or designed for use in injecting, inhaling, or otherwise introducing controlled substances into the human body in violation of law.

(3) Drug Trafficking - the sale, transfer, or possession with the intent to sell or transfer controlled substances.
________________________________________________________________________

2. Procedures

a. Notification procedures are used for the following situations:

(1) Conviction/offense occurred in a prior enlistment or pre-service and processing for fraudulent enlistment is not appropriate.

(2) Member self-refers to a qualified self-referral representative with the intent of acquiring treatment and is found to be drug-dependent by proper medical authority.

(3) Processing is based on fitness for duty or certain service-directed urinalysis, per OPNAVINST 5350.4C (see following table).

(4) Voluntarily discloses evidence of prior personal drug abuse during course of treatment/rehab.

(5) Naval Reservists testing positive on accession test into the Reserve Program.

(6) Prior service Applicants for Selected Reserve enlistments/ reenlistments whose break in service from a Selected Reserve or Regular component is more than 6 months.

b. Other than the above exceptions, drug abuse must be processed using administrative board procedures (MILPERSMAN 1910-404) with Under Other Than Honorable (OTH) being the least favorable characterization of service considered. This applies to both Regular and Reserve personnel. (Example: Drilling reservists who test positive on urinalysis may be processed for OTH regardless of when the drugs were ingested.)

c. If member waives right to administrative board, under administrative board procedures, only General Court-Martial Convening Authority or higher serves as separation authority.
________________________________________________________________________

3. Use of Urinalysis Results

a. Use this table to determine basis for separation and characterization of service.

NOTE: Only urinalysis results from a NAVDRUGLAB or other DOD-certified lab will be used to refer a military member for appropriate disciplinary action and to establish the basis for separation and characterization of discharge.

Type	Usable in Disciplinary Proceedings	Usable as basis for separation	Usable for OTH Char-acterization
Search or seizure • Member's consent • Probable cause	Yes Yes	Yes Yes	Yes Yes
Inspection • Random sample • Unit sweep	Yes Yes	Yes Yes	Yes Yes
Medical - general diagnostic purposes (e.g., ER treatment, annual physicals etc.) (See Rule 1)	Yes	Yes	Yes
Fitness for duty • Command-directed • Competence for duty • Mishap/safety investigation	No No No	Yes Yes Yes	No No No
Service directed • Treatment facility staff (military) • Alcohol rehab testing • Naval brigs • Entrance testing • Accession training pipeline	Yes No Yes No Yes	Yes Yes Yes Yes Yes	Yes No Yes No

Yes

a. Rules

(1) The medical facility should immediately notify the member's command of a positive urinalysis or blood test. This notification should prompt the commanding officer or acting commanding officer to authorize an immediate probable cause urinalysis conducted by the command's designated urinalysis coordinator. If the commanding officer or acting commanding officer will not be available in excess of 24 hours, then the command duty officer or officer of the day should authorized an immediate command directed urinalysis. Immediate action is necessary to preclude further degradation of possible controlled substances in the system due to the passage of time. An exception to this policy is if the member is unconscious and unable to knowingly provide a urine sample.
(2) Yes for reservists recalled to active duty only (except Delayed Entry Program participants).
_______________________________________________________________________

4. Characterization of Separation . MILPERSMAN 1910-300 provides information for characterization guidance. If the member has less than 180 days of service, an Entry Level Separation may be appropriate. See MILPERSMAN 1910-308.
_______________________________________________________________________

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NAVY | DRB | 2003_Navy | ND03-00209

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