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NAVY | DRB | 2003_Navy | ND03-01085
Original file (ND03-01085.rtf) Auto-classification: Denied


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

ex-ACAN, USN
Docket No. ND03-01085

Applicant’s Request
The application for discharge review was received on 20030605. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record 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 20040423. 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

 Applicant’s issues, as stated on the application:

“1. The discharge is inequitable (unfair) because I was a good person but was incapable of performing military duties; that mitigating factors existed; that overall service record was good and I had good conduct and efficiency ratings.

2. After my left retromastoid craniectomy on 10-21-1998, I had extreme headaches and depression which was my mitigating factor. After I received my Good Conduct Medal on April 12, 2000, I continued to have extreme headaches and depression and resorted to the use of drugs, which I knew was wrong, in order to help in coping with my continuing medical problems.

3. My average conduct and efficiency ratings/behavior and proficiency marks were good.

4. I received awards, decorations and letters of recommendation. My record of promotions showed I was generally a good service member.

5. I have been a good citizen since discharge.

6. My use of drugs and medical problems impaired my ability to serve.

 7. I should have gotten a medical discharge because I was not medically qualified to serve.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Statement from Applicant
Statement from Applicant’s wife
VA Ratings Decision Letter (18 pages)
Applicant’s service record (54 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910730 - 940524
         Active: USN                        940525 - 971117  HON

 Period of Service Under Review :
Date of Enlistment: 971118               Date of Discharge: 000630

 Length of Service (years, months, days):

         Active: 02 07 12
         Inactive: None

 Age at Entry: 21                          Years Contracted: 5

 Education Level: 12                        AFQT: 64

 Highest Rate: AC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 3.00 (1)                OTA: 3.14

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, AFEM, CGM, NAM

 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 :

990111   Medical Report: Pt has had history of tumor removed in November 1998. Pt still has headaches. Dr. L_ thinks that headaches may be secondary to tumor or trauma. Prescribed Elavil and Paxil for headaches.

990616   BUMED: Pt is NPQ for duty as an Air Traffic Controller due to Neoplasm, brain, benign-hx considered permanent. Use of medication, Paxil, Elavil-hx considered permanent. Hearing loss, due to pressure and swelling on CN8-hx considered permanent. Excision of lesion (17 Nov 98)-hx considered permanent. Based on FS recommendation and NAMI-42 review, waiver not recommended.

990813   CO, NAS Corpus Christi, strongly recommended revocation of Petty Officer W_’s (Applicant) ATCS certificate and forced lateral conversion.

000411:  NJP for violation of UCMJ, Article 112A: Wrongfully use an illegal drug: Marijuana as evidenced by positive results from a command directed unit sweep urinalysis.
         Award: Forfeiture of $667.95 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

000630   Discharged under other than honorable conditions by reason of misconduct due to drug abuse. [Extracted from DD Form 214]

Applicant’s service record is incomplete.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000630 under other than honorable conditions for misconduct due to drug abuse (A). In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

 Issue 1-4, 6 and 7: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While he may feel that his medical condition was a contributing factor, it does not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. His service record is marred by award of nonjudicial punishment (NJP) for illegal drug use. Additionally, the Applicant was only disqualified from serving as an air traffic controller and was allowed to laterally convert to another rating of his choice. The Applicant’s conduct and performance during his last enlistment, which form the primary basis for determining the character of his service, fall short of that required for an honorable characterization of service. Relief denied.

Issue 5: 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. 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. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty. 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 or any other 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 27, effective 27 March 2000 - 11 Feb 2001, 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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