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NAVY | DRB | 2004_Navy | ND04-00155
Original file (ND04-00155.rtf) Auto-classification: Denied


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

ex-SHSN, USN
Docket No. ND04-00155

Applicant’s Request
The application for discharge review was received on 20031031. 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 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, 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 feel that I should have my discharge changed to honorable because I want to go to school and I will not be able to use the G.I. Bill as it is. I also feel that I have learned from my mistakes in the Navy, and should be able have a chance to use the Hazelwood Act. It has been a year since I left the military.”
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)     961125 - 970701  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 970702               Date of Discharge: 011214

 Length of Service (years, months, days):

         Active: 04 05 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 extension)

Education Level: 12                        AFQT: 54

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.67

 Military Decorations: None

 Unit/Campaign/Service Awards: RMM, AFEM, CGUCR, SSDR(2), MUCR(3)

 Days of Unauthorized Absence: 15

 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 :

971223:  UA from TPU Great Lakes, IL at 0715, 971223.

980106:  Surrendered to Military Authority at TPU, Great Lakes, IL at 0715, 980106 (14days/S).

990919:  Retention Warning: Advised of deficiency (You were awarded CO’s NJP for violation of UCMJ, Article 86 (Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
990919:  NJP for violation of UCMJ, Article 86: Go from his appointed place of duty from 1020, 990720 until 0730, 990721, violation of UCMJ, Article 107: False official statement on or about 990721.
         Award: CCU for 30 days, forfeiture of $537.00 pay per month for 1 month, reduction to E-2 (suspended for 6 months). No indication of appeal in the record.
991227:  To UA.

991228:  From UA (1day/S).

 001003:  NJP for violation of UCMJ, Article 92: Failed to obey a lawful general regulation, and (2 specifications) of fail to obey other lawful order.
         Award: Forfeiture of $667.00 pay per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 30 days, reduction in rate (suspended for 6 months). No indication of appeal in the record.
011027:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
Award: Forfeiture of $717.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
011107:  NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 011105, tested positive.
011113:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct as evidenced by CO’s NJP of 990919 and 001003; misconduct due to commission of a serious offense as evidenced by CO’s NJP of 001003 for violation of UCMJ, Article 92, failure to obey a lawful order; misconduct due to drug abuse as evidenced by wrongful use of marijuana on or about 010820.
011113:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
011127:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct.

011129:  COMCRUDESGRU THREE 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 20011214 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 three nonjudicial punishment proceedings for five violations of the UCMJ to include violations of Article 86, unauthorized absence, Article 92, failure to obey an order, Article 107 for submitting a false official statement and Article 112a for illegal substance use. 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.

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 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.

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

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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