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NAVY | DRB | 2003_Navy | ND03-01051
Original file (ND03-01051.rtf) Auto-classification: Denied


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

ex-AWAR, USN
Docket No. ND03-01051

Applicant’s Request
The application for discharge review was received on 20030528. The NDRB received an amended second application on 20040616 with change of address and applicant signature. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant listed Civilian Counsel as the representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20040628. 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
Issues submitted by Applicant’s counsel/representative ( CIVILIAN COUNSEL):
1. “J___ D. T___ IV’s Exemplary Military Service History.”

2. “J___ D. T___ IV’s Discharge Under Other Than Honorable Conditions Was Unreasonable, Unjustified , Unfair, and Improper (Captain’s Mast).”
 3. “J___ D. T___ IV’s Civilian Educational History.”4. “J___ D. T___ IV’s discharge for other than honorable conditions from the U.S. Navy is having a punitive effect on his future potential in the civilian employment secotr.”5. “J___ D. T___ IV’s Future.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’ s DD Form 214
Amended Letter from K___ G. R___, Esq (9 pages)
 Exhibit 1 : Copy of Certificate of Completion (Aviation Warfare System Operator Course) dated October 25, 2001, Copy of Certificate of Completion (Naval Aircrew Candidate School) dated June 21, 2001, Copy of Certificate of Completion (Survival, Evasion, Resistance & Escape D/E-2D-0039) dated November 9, 2001.
 Exhibit 2 : Affidavit of J___ D. T___, IV (8 pages)
 Exhibit 3 : Letter from Gibson Polygraph Service (2 pages)
 Exhibit 4 : Curriculum Vitae for Arizona State Polygraph Examiner License (6 pages).
 Exhibit 5 : Letter from Dr D___ A, N.M.D of Source Naturopathic Medical Clinic (2 pages) dated June 6, 2004.
 Exhibit 6 : Curriculum Vitae.
 Exhibit 7 : Letter from J. M___ F__ Mediation/Attorney at Law dated May 25, 2004 (2 pages)
 Exhibit 8 : Copy of High School Diploma, Copy of High School Academic Record, Copy of Community College Academic Record.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010228 – 010314  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 010315               Date of Discharge: 020513

 Length of Service (years, months, days):

         Active: 01 01 28
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4 (24 months extension)

 Education Level: 12                        AFQT: 48

 Highest Rate: AWAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No Marks Available for review

 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 :

020321:  NAVDRUGLAB [JACKSONVILLE, FL], reported Applicant’s urine sample tested positive for [cocaine].
020403:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of 1/2 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
020405:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
020405:  Applicant advised of 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.
020418:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments: On 01 Nov 2001, Aviation Warfare Systems Operator Airman Recruit J___ D. T___ checked onboard Patrol Squadron 30. On 12 March 2001 Airman Recruit T___ went UA from the command and consented to a urinalysis the following day. On 21 March 2002, a report of urine sample was received by VP30 DTG 192218Z MAR 02 indicating that Airman Recruit T___ had tested positive for Cocaine. He was read his rights on 22 Mar and at that time he expressed his wish to consult with a lawyer. After speaking with a legal counsel he waived all of his rights and was seen at CO’s Mast on 03 April 2002. From reviewing his service record, Airman Recruit T___ showed propensity of engaging in illegal drugs use by “Experimenting“ with marijuana on 4 or more occasions for which a drug waiver was issued prior to his enlistment. Airman Recruit T___’s misconduct to wrongfully use of cocaine cannot be tolerated. His action have shown a lack of self discipline and brought discredit upon himself, this command, and the United States Navy. I therefore approve this separation and recommend that his service be characterized as under Other Than Honorable conditions.

020422:  Commander, Navy Region Southwest authorized 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 20020513 under other than honorable conditions for misconduct due to drug abuse (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. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 86, 92 and 112a of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

Issue 2. There is credible evidence in the record that the Applicant used illegal drugs. 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 Applicant’s allegations, that he was unwittingly drugged, do not refute the presumption of regularity in this case. 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. Relief denied.

Issue 3. Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors after a review of Applicant’s case. There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time, good conduct in civilian life subsequent to leaving naval service or educational history. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. As of this time, the Applicant has not provided sufficient documentation to warrant an upgrade of his discharge. Therefore, no relief is appropriate.

Issue 4. The Applicant's other than honorable discharge was proper and equitable. 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. There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge. The Applicant's misconduct is clearly documented. He acknowledged and waived his rights to administrative review. He was notified that by waiving his rights and accepting an other than honorable discharge, he could possibly encounter significant difficulties in obtaining employment and other benefits. The Applicant was afforded the appropriate due process during the processing of his case. An upgrade of the Applicant's discharge to an honorable characterization is not warranted. Relief denied.

Issue 5. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. 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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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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