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NAVY | DRB | 2004_Navy | ND04-00125
Original file (ND04-00125.rtf) Auto-classification: Denied


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

ex-TMSN, USN
Docket No. ND04-00125

Applicant’s Request
The application for discharge review was received on 20031022. 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 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 20040720. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My undesirable discharge was inequitable because it was based on one isolated incident in my (11yrs) of service. I served my country and my community meritoriously. I first entered service in the moarng on 31 Dec 81 to 28 Aug 85, and was honorable discharge. My first active duty service in the Navy was 01 Apr 86 to 07 Mar 90. During this time I received my first good conduct medal, having no incident of (NJP), or Capital Mast.”

2 “During my administrative board hearing, my commanding officer recommend my separation be considered general under honorable conditions. My commanding also sent a statement to the reflecting my character of service based on the 32 months of good conduct prior to the incident. During this period of time I received excellent performance mark on my evaluation.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 215
Copy of DD Form 214 (long version)
Copy of DD Form 214 (short version)
Copy of DD Form 214 (RELACTDU)
Copy of Report of Separation and Record of Service from Army, MOARNG
Copy of Army National Guard Retirement Credits Record
Copy of Certificate of Recognition
Letter from Social Worker Domiciliary Care for Homeless Veterans Program
dated May 23, 2003
Copy of Certificate of Achievement (Domiciliary Care for Homeless Veterans Program)
Transcript of Conviction Arrest Information
Copy of Court Order dated September 25, 2003 (2pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        860401 - 900307  HON
         Inactive: USNR (DEP)     850829 - 860331  COG

 Period of Service Under Review :
Date of Enlistment: 900308               Date of Discharge: 930409

 Length of Service (years, months, days):

         Active: 03 01 01
         Inactive: None

 Age at Entry: 26                          Years Contracted: 5

 Education Level: 12                        AFQT: 36

 Highest Rate: TM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.88 (5)    Behavior: 3.32 (5)                OTA: 3.68

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM, Shotgun Expert Ribbon, Rifle Expert Ribbon, Battle “E”, SSDR

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

900308:  Reenlisted onboard USS CANOPUS (AS-34) for 5 years.

 930303:  NAVDRUGLAB [Jacksonville, FL], reported Applicant’s urine sample, received 930224, tested positive for [cocaine].

930311:  NAVDRUGLAB [Jacksonville, FL] retested Applicant’s urine sample, tested positive for [cocaine].

930322:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession, ETC., of controlled substance on or about 930222 as reported by urinalysis report.
         Award: Forfeiture of $630.00 pay per month for 2 months, reduction to E-4. No indication of appeal in the record.
930324:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by illegal or wrongful use or possession of a controlled substance.
930324:  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.

930402:  Medical evaluation found Applicant not alcohol or drug dependent.
930407:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930407:  BUPERS 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 19930409 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 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. T he Applicant states her discharge was based on one isolated incident. The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, to maintain proper order and discipline, the military does not view such offenses as minor infractions. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which she was separated. Relief denied.

Issue 2. 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. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that her evidence of post-service conduct was found not to mitigate the conduct for which she was discharged. Relief denied.

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 conduct, which forms the primary basis for determining the character of his service, reflects her 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 her characterization of service. Relief on this basis is 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 evidence relating to her discharge at that time. Representation at a personal appearance hearing is recommended but not required.





Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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