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NAVY | DRB | 2003_Navy | ND03-01442
Original file (ND03-01442.rtf) Auto-classification: Denied


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

ex-AZAA USNR
Docket No. ND03-01442

Applicant’s Request
The application for discharge review was received on 20030909. 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 did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712. 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 stated

Applicant’s issues, as stated on the application:

1. “I joined the Navy in April of 1998 right after high school to broaden my horizens and earn money for college and to better stabilize my future. I enlisted as a undesignated airman and was stationed on the USS Enterprise CVN-65. I struck out of my division V-3 and made Petty Officer 3 rd class under the rate AZ and worked in my ship’s AIMD dept under the Dept head. I was married and going thru a divorce at this point in my naval career and had a lot of stress and drama going on in my personel life. I never had any blemishes in my naval career and I ruined what was the perfect opportunity for me to succeed in the navy by hanging with the wrong people. Not blaming them for my actions, I made a mistake that got myself discharged from the Navy. I could have been dishonable discharged but do to my clean back ground and support from my superiors I got a JAG and fought my discharge and received a General under honorable Conditions. I got out the Navy and have been working for ATT wireless for the last 2 years. I wanted to further my education thru schooling and applied for the Montgomery GI Bill, in which I have a hundred dollars each month to be enrolled in for the first twelve months of my naval career. The Dept of Veterans affairs advised me of my discharge having to be Honarable to get my benefits. So I am now asking due to no other infractions on my service record if I could have my discharge upgraded to be able to receive my full benefits for serving in the United States Navy. Thank you for your time for reviewing the matter.”

Additional issues submitted by Applicant’s counsel (Veterans Of Foreign Wars):

 2. “ Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning his application. His records were reviewed on 20040227 and the following comments are hereby submitted:
We concur with the Applicant contentions and that his discharge would be upgraded.

We refer this case to the Board for their careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to Honorable. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

 Applicant’s DD Form 214 (Member 4) (2)
Nine pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980328               Date of Discharge: 010201

 Length of Service (years, months, days):

         Active: 02 09 18
         Inactive: 00 00 15

 Age at Entry: 18                          Years Contracted: 8

Education Level: 12                        AFQT: 49

 Highest Rate: AZAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.50 (2)                OTA: 2.83

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, AFEM, NUC, NATO

 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 :
980107:  Applicant briefed on Navy's policy of drug and alcohol abuse.

 980415:  You are being retained in the Naval service, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings, shoplifting, 6/92, Harrisburg, PA, No charges filed; disorderly conduct, 4/93, Harrisburg, PA, Paid $75.00; expired inspection sticker, 12/96, Harrisburg, PA, Paid $90.00.

000815:  Civil Charges: General District Court (Criminal) for violation of possession of marijuana on 0300, 000815.
 Sentence: Court date scheduled for 000904.

000911:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 000830 tested positive for THC.

001004:  NJP for violation of UCMJ, Article 112a: On active duty, did in the Norfolk, VA area, on or about 000814, wrongfully use of marijuana.
 Award: Forfeiture of $563 per month for 2 months, restriction and extra duty for 45 days, reduction to AZAA. No indication of appeal in the record.
001018:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

001018:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
010112:  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 discharge general (under honorable conditions).

010608:  Commanding Officer, having concurred with the Administrative Discharge Board, advised the CNPC of Applicant’s discharge with a characterization of General (Under Honorable Conditions) by reason of misconduct due to drug abuse (use). Commanding Officer’s comments: “On 980415, AZAA G_ (Applicant) acknowledged receipt of a counseling and warning Page 13 for fraudulent induction due to his failure to disclose his arrest in 1992 for shoplifting; his arrest in 1993 for disorderly conduct; and his ticket from 1996 for an expired inspection sticker. On 000815, AZAA G_ (Applicant) was arrested outside of a local restaurant by the Norfolk Police for possession of marijuana. On 001004, AZAA G_ (Applicant) pled guilty at Captain’s Mast of wrongfully using marijuana. On 001019, AZAA G_ (Applicant) acknowledged receipt of administrative processing notification and after consulting with a judge advocate he exercised his right to an administrative board. On 001116, the charge of possession of marijuana was dismissed by Norfolk General Court (Criminal) due to a consensus between the Commonwealth officer that AZAA G_ (Applicant) had been appropriately punished by the Navy. On 010112, after hearing all the testimony and weighing all of the evidence presented to them, the Board found by preponderance of the evidence, separation with a characterization of general (under honorable conditions). The seriousness of AZAA G_’s (Applicants) misconduct indicated that he did not have the potential for further naval service. In concurrence with the Board’s finding due to drug abuse with a characterization of general (under honorable conditions)”.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010201 with a general (under 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 available 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’s service record is marred by award of nonjudicial 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities 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.

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. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.

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 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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