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NAVY | DRB | 2004_Navy | ND04-00356
Original file (ND04-00356.rtf) Auto-classification: Denied


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

ex-PHAN, USN
Docket No. ND04-00356

Applicant’s Request
The application for discharge review was received on 20031218. 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 20040817. 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 3630620.

 The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks, the following statement should be added: "CONTINUOUS HONORABLE ACTIVE DUTY FROM 871123 UNTIL 911114". The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I am currently doing service as a volunteer at the V.A. Medical Center in Northport, N.Y. As was the case while in the Navy, I am enjoying the structured environment emensely and most importantly, I am anticipating employment within the Department of which I am now a volunteer. However, I have found that my current discharge characterization is a hinderance to my further exploring employment at that V.A. until a change has been made as a result of this request.

For seven years of service in the Navy, I showed myself as a person who excelled in every area and opportunity that I was presented with. As a result I was chosen by my superiors as a leader. The documents attached to this request span a period covering my time in service as well as, just prior to. These documents will not only my leadership qualities, but also the confidence my superiors, at that time had in me, by endorsing my submission to the Board for Office Candidate School.

To Whom This May Concern:

I respectfully request that my DD Form 214 be upgraded from “Other than Honorable”, to “Honorable” or “General”

My being discharged under “Other than Honorable” is a result of my use of marijuana at a very weak moment in my life which stemmed from the use of alcohol, while T.A.D in Pensacola, FL at Motion Picture School. Although I was not able to address my use of the drug at time, I did so after my discharge and have been an active and productive member of society since then.

I have included various documents with my application to show that my seven years in service displays a person with dedication and devotion to the U.S. Navy, not a person, who as my DD 214 states to be, “Other than Honorable”

I thank you in advance for considering my application. I look forward to your decision in this matter.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Bachelor of Arts Degree, University of Notre Dame dated 2 August 1985
First Endorsement, Application for Commissioning Program undated
Record of Interview dated 9 August 1991
Letter of Commendation from Commander, Cruiser – Destroyer Group Two
Performance Evaluation Report dated 9 September 1994
Evaluation Reports, January 1988 – March 1994

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870807 - 871122  COG
         Active: USN                        871123 - 911114  HON

 Period of Service Under Review :
Date of Enlistment: 911115               Date of Discharge: 941121

 Length of Service (years, months, days):

         Active: 03 00 07
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

Education Level: BA                        AFQT: 63

 Highest Rate: PH2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (4)    Behavior: 3.80 (4)                OTA: 3.90
Military Decorations: GCM

 Unit/Campaign/Service Awards: NDSM, NUC, SSDR(2), SWAS(3), AFEM

 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 3630620.

 Chronological Listing of Significant Service Events :

940922:  NJP for violation of UCMJ, Article 112a: wrongful use of a controlled substance.
         Award: Reduction to E-3. No indication of appeal in the record.
941017:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Nonjudicial punishment of 940922 for wrongful use of a controlled substance.
941027:  Applicant advised of rights and having elected not 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.
941101:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

941114:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941121 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: The Applicant contends that he served the United States well and he is entitled to an upgrade. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions 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 admitted drug use and nonjudicial punishment proceedings for a violation of Article 112a of the UCMJ. 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 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.

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. 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 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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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