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NAVY | DRB | 2004_Navy | ND04-00094
Original file (ND04-00094.rtf) Auto-classification: Denied


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

ex-ADAA, USN
Docket No. ND04-00094

Applicant’s Request
The application for discharge review was received on 20031017. 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 20040715. 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. “During the two years I served in the U.S. Navy I had never had any previous Disciplinary problems or negative reports. In this incident I admit that I Made the wrong decision by smoking marijuana. My only sister was getting Married on June 30 and I was told that I would definitely be discharged by the wedding date. When it was within a few days of the wedding I was told, no, we are Going to keep you until after the wedding to teach you a lesson and give you something to think about. When I returned from the wedding 2 days later I was then told that they were planning on giving me a General Discharge had I not Left to go to the wedding. Why should I be punished twice for the same incident, when this second punishment was totally on a personal level. When I returned to the base 2 days later an additional 45 days restriction was added to me, plus 1/2 months pay X2.

I have been continually employed since my discharge and I am trying to be successful in my life, do as well as I can and having my discharge changed would be a major step in the right direction.

Thank you for any consideration given to me in this matter,”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990728 - 990829  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 990830               Date of Discharge: 010810

 Length of Service (years, months, days):

         Active: 01 11 11
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 53

 Highest Rate: ADAA

 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: 2

*No marks found in Applicant’s service record.

 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 :

010404:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010329, tested positive for THC.

010502:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010514:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010503, tested positive for cocaine.

010521:  NJP for violation of UCMJ, Article 112a (2 specs): wrongful use of cocaine and marijuana on 010517.
Award: Forfeiture of 1/2 month pay for 2 months, restriction and extra duty for 45 days, reduction to ADAR. No indication of appeal in the record.
010521:  Applicant advised of rights and having elected 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.

010630:  Unauthorized absence on 010630.

010703:  Surrendered to military authorities on 010703.

010703:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 010630 - 010703, violation of UCMJ, Article 134: Breaking restriction on 010630.
         Award: Forfeiture of $272.00, restriction and extra duty for 14 days. No indication of appeal in the record.

010713:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments: In his one year, eleven month career in the Navy, ADAA B_ (Applicant) has been to two NJP’s in a two-month time frame. His narcotic use is an obvious problem and is not to be taken lightly by this Command. Airman B_ (Applicant) to date, shows no remorse or regret for his actions. In fact, his actions are detrimental to the good order and discipline of the command. Request he be separated as expeditiously as possible with a characterization of service of other than honorable.

010801:  Commander, Naval Air Force, U.S. Pacific Fleet 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 20010810 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 a positive urinalysis for marijuana, followed by a positive urinalysis for cocaine and violations of Articles 86 and 134. 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.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided no documentation of his post-service aside from his statement of having been continuously employed. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and evidence of drug free existence, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Additionally, 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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