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NAVY | DRB | 2003_Navy | ND03-00215
Original file (ND03-00215.rtf) Auto-classification: Denied


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

ex-DCFA, USN
Docket No. ND03-00215

Applicant’s Request
The application for discharge review was received on 20021121. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20031121. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

Applicant’s issues, as stated on the application:
“#1 my voluntary out of teaching my shipmates about the toil of drug use in the Navy. This took place while I was on restriction. See documents #46 & 15 (reverse side).”

#2 I was top of the line in knowledge of my rate. I think my DC3 exam results are a great example. See document #43.

#3 The Letter of Appreciation from my CO after the offence my work ethic and attitude was unfiltered by my pending punishment. See document #2

 Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“ 4. (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:
Letter from Commanding Officer, dated February 26, 2002
Applicant’s DD Form 214
Letter from Applicant, dated June 19, 2002
Letter from Applicant, dated November 11, 2002
Seventy-seven pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     981208 - 990602  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990603               Date of Discharge: 020118

 Length of Service (years, months, days):

         Active: 02 07 16
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 57/59

 Highest Rate: DCFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (2)    Behavior: 2.50 (2)                OTA: 3.34

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

010521:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010515, tested positive for cocaine.




010619:  NJP for violation of UCMJ, Article 92: (Not found in service record, violation of UCMJ, Article 111: Driving under the influence, violation of UCMJ, Article 112A: Possession of drug paraphernalia, violation of UCMJ, Article 134: Underage drinking.
         Award: Forfeiture of $607.35 per month for 2 months, restriction and extra duty for 45 days, reduction to DCFA. No indication of appeal in the record. [Extracted from supporting documents from the Applicant.]
010626:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
010626:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010713:  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 retention.

010723:  Commanding Officer recommended retention. Commanding Officer’s comments (verbatim): I want to keep DCFA (Applicant) in the Navy and on LASSEN. He is one of a tiny group of drug offenders to whom we should give a second chance. DCFA (Applicant) spent an evening drinking in Tijuana with a friend and was subsequently charged with Driving Under the Influence as he attempted to return to the Naval Base the same night. As per command procedure, he consented to a urinalysis upon his turnover to the command following his arrest. The drug lab message stated and he confirmed in a sworn statement that he used cocaine that night in Tijuana. DCFA (Applicant) received the maximum punishment at NJP for Driving Under the Influence, Drug Use, and Failure to Obey a lawful order or regulation, Drinking Under Age.

         As per his character, DCFA (Applicant) has continued to perform both this punishment and regular duties in an exemplary fashion. Additionally, he was voluntarily devoted numerous hours leading formal discussions/briefs with all Command junior sailors on the many life-changing consequences of drug use. Focusing on risky or careless behavior of E-4 and below, his story and earnestness sparked significant interest among his peers and fostered deep and meaningful discussion on the dangers of drug use and immature behavior in life and, in particular, the Navy.

         LASSEN is willing to take the risk of keeping DCFA (Applicant) in the Navy. His future potential far outweighs the risk. I most strongly recommend the Navy allow us to take this risk.

010921:  Commander, Naval Surface Force strongly concurs with the recommendations of the administrative board and the Commanding Officer recommending a one-year suspended separation with mandatory weekly random urinalysis for the duration of the suspension.

011015:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).
01??10:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

020102:  CNPC directed the Applicant's discharge 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 20020118 with a 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).

Issues 1-3. The Applicant’s misconduct significantly out weighs the positive contributions that he made during his military service. The discharge was proper and equitable. Relief denied.

 Issue 4. 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. However, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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 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, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. 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 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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