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NAVY | DRB | 2003_Navy | ND03-00316
Original file (ND03-00316.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND03-00316

Applicant’s Request
The application for discharge review was received on 20021211. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests 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 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. I wish respectfully to the board to review my service record and to take into consideration that my command at the time do not offer me any kind of substance abuse treatment upon my prior to being held for Captains Mast. The officer on that command did absolutely nothing to help me. I wish I would have been able to be rehabilitated. I am asking the board for the upgrade to obtain V.A. benefits and a refund of funds from my G.I. Bill. I J_ E. W_ SSN#XXX-XX-XXXX am asking that my discharge was inequitable because it was based on one isolated incident in 28 months of service with not adverse action. Please take into consideration that I was not offered any counsel or treatment at that time. I was rushed to disposition and Captain’s Mast because my command at the time was preparing for a 6 month deployment. I was not offered any options at that time and was placed in a legal hold barracks at 32 nd St Naval Station San Diego, CA. I was young and scared at the trouble I was in and did not no exactly my options. I feel I was not treated fairly or I feel a chance or second chance to seek treatment to save my enlistment. I feel I was over punished and rushed into making harsh decisions over punished and am asking a review of my file and that consideration of an upgrade be considered so I might be eligible for V.A. benefits for re-habilitation for trade or schools. I wish to ask to you to review that the Montgomery G.I. Bill allotment funds that were deducted from my pay be re-embursed to me.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870624 - 870705  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 870706               Date of Discharge: 890313

 Length of Service (years, months, days):

         Active: 01 08 08
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.90 (2)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

871130:  NJP for violation of UCMJ, Article 86: Absent from place of duty on 871105.
         Award: Forfeiture of $172.00 pay per month for 1 month, restriction and extra duty for 14 days, No indication of appeal in the record.
880202:  Unauthorized absence over liberty 0700 to 0830, 880202 (1 hour/30 minutes)

880817:  Unauthorized absence over liberty 0700 to 0830, 880817 (25 minutes)

880819:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0500 to 1120, 880727 (6 hours 20 minutes), violation of UCMJ, Article 87: Missing sailing of USS DENVER 880727.
         Award: Restriction to USS DENVER and extra duty for 15 days. No indication of appeal in the record.
881208:  NJP for violation of UCMJ, Article 112a: Wrongful use or possession of a controlled substance.
         Award: Forfeiture of $350.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

881209:  DAAR indicates Amphetamine abuse as a result of a random urinalysis, Applicant found not dependent, recommended for separation not via VA hospital.

881209:  Medical evaluation indicates applicant is not alcohol or drug dependent.
881209:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse [Extracted from CO’s message].
881209:  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 [Extracted from CO’s message].
881209:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

890226:  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 19890313 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: The Applicant states his discharge was based on one isolated incident in “28 months.” In civilian life this type of offenses may be treated with leniency because they are a first time incident on an otherwise clear record. However, the military does not view such offenses as minor to maintain proper order and discipline. The Applicant’s service record is marred by award of non-judicial punishment (NJP ) for illegal drug use, thus substantiating the misconduct for which he was separated. Drug abuse warranted processing for separation, normally under other than honorable conditions. Additionally, the Applicant was diagnosed to be a drug abuser and not drug dependent. Therefore the Applicant was not offered treatment. Furthermore, t he Board has no authority to upgrade a discharge for the sole purpose of enhancing educational or Veteran’s benefits as requested in the issue. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. 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. 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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