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NAVY | DRB | 2003_Navy | ND03-00448
Original file (ND03-00448.rtf) Auto-classification: Denied


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

ex-DCFA, USN
Docket No. ND03-00448

Applicant’s Request
The application for discharge review was received on 20030123. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for discharge be changed to “Administrative.” 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 20031229. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board discovered no impropriety or inequity in the characterization of the Applicant’s service and the reason for discharge. The Board’s vote was unanimous that the character and reason for 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

 Applicant’s issues, as stated on the application:

 “Issue 1: I had willfully admitted to trying an illegal drug to a Naval Medical Specialist. I was aware that this was in violation of the U.C.M.J. I felt I was being honorable by taking a path of honesty and attempting to deal with my personal issues.

Issue 2: I had taken advice from my chain of command, to deal with my issues in a
professional manner.

Issue 3: During my time as an active duty sailor, I had not missed one muster, not one watch rotation, or had I ever been AWOL, or refused to appear when called upon. My time as a Damage Control man was spent with Honor, Commitment, and Courage.

Issue 4: The discharge “Reason” is improper, because under the questioning of a Naval Medical Specialist I had admitted drug use. I was and am not a drug user. I feel that being branded as a “Drug user” is harsh to an honorable person who tried to do what is right and honest.

Issue 5: I feel that a discharge upgrade is appropriate for my circumstance, so that I may continue with a professional career and complete my previous dedication in a Naval Reserve unit.

Issue 6: I have encountered a “Road block” in applying for re-entry into the Navy. I have sent similar packages to a Naval Reserve Councilor and we are being told that under “Reason” in my DD-214, my paperwork will not be forwarded. I request to have a second chance to earn an honorable discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Applicant, dated November 20, 2002
Character reference, undated
Character reference, dated February 25, 1998
Character reference, dated October 15, 2002
Letter of recommendation, dated July 3, 2002
Job reference, undated
Character/job reference from City of Chico councilman, undated
Naval correspondence course completion certificate, dated August 2, 1996 (2)
Examination profile information, dated September 1996
Advancement examination tear sheet for all DC3
Examination profile information, dated September 1997
Advancement examination tear sheet for all DC2
Evaluation Report and Counseling Record, dated June 15, 1997, December 11, 1996, December 15, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     940729 - 950716  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950717               Date of Discharge: 980715

 Length of Service (years, months, days):

         Active: 02 11 29
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 36

 Highest Rate: DC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.25 (4)    Behavior: 2.75 (4)                OTA: 3.21

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, 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 :

980320:  NJP for violation of UCMJ, Article 91: Disrespect toward a superior chief petty officer.
         Award: Forfeiture of $100 per month for 1 month. No indication of appeal in the record.
980604:  NJP for violation of UCMJ, Article 92: Failure to obey other lawful order, violation of UCMJ, Article 89: Disrespect toward a superior commissioned officer.
         Award: Forfeiture of $568 per month for 2 months, restriction for 30 days, reduction to DCFN. No indication of appeal in the record.
980526:  Medical evaluation for drug abuse found the Applicant to be a cannabis abuser and have an adjustment disorder with depressed mood (provisional).

990623:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession of a controlled substance.
         Award: Restriction and extra duty for 45 days, reduction to DCFA. No indication of appeal in the record.
980715:  DD Form 214: Applicant discharge under other than honorable conditions by reason of misconduct due to drug abuse.

[PARTIAL DISCHARGE PACKAGE MISSING]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980715 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 1-6: The Applicant’s issues are without merit. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Board found no indication in the record that the Applicant was inequitably or improperly discharged. The Applicant’s service is marred by award of non-judicial punishment (NJP) on three separate occasions for disrespect, failure to obey a lawful order and illegal drug use. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Additionally, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter. To change the characterization of service or narrative reason for separation would be inappropriate. Relief denied.

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 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. E vidence 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 Board appreciates the Applicant’s efforts to improve his life encourages him to continue. However, the verifiable documentation of good character and conduct the Applicant has provided did not warrant an upgrade. 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 18, effective 12 Dec 97 to 19 May 99, 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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