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NAVY | DRB | 2004_Navy | ND04-00382
Original file (ND04-00382.rtf) Auto-classification: Denied


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

ex-GSMFR, USN
Docket No. ND04-00382

Applicant’s Request
The application for discharge review was received on 20040105. 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 review was conducted in Washington, D.C. on 20040910. 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 wish to have my once other than honorable to be upgraded to General So that I R_ C_ (Applicant), can get all my Benefits that I was originally to receive Before my misjudgment. It’s been almost five years since my Terrible misjudgement, and I want the government to consider my appeal. My counselor 4 yrs ago told me that I would be intitled to this when my time change was up. Now Its Been 4 ½ yrs, and I need those benefits, for my children.”

 2. “I also have accumulated some hospital bills over the last couple of years, and my job only covered a small percentage and getting me reinstated could really help me out, cause I’m a single parent, and I pay child support for 2 kids that reside their mothers, and It would be a great, great help to get me reinstated.”

 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)     950331 - 950411  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 950412               Date of Discharge: 990315

 Length of Service (years, months, days):

         Active: 03 11 04
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 42

 Highest Rate: GSMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.43 (7)    Behavior: 2.71 (7)                OTA: 3.17

 Military Decorations: None

 Unit/Campaign/Service Awards: AFSM, NDSM, AFEM, NER, OSR (2) SSDR

 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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :
960604:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order, violation of UCMJ, Article 128: Assault consummated by a battery.
Award: Forfeiture of $490.00 per month for 1 month, restriction and extra duty for 30 days. No indication of appeal in the record.
960605:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 92 -failure to obey lawful order or regulation and Violation of UCMJ, Article 128 – assault consummated by a battery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980211:  NJP for violation of UCMJ, Article 128: Wrongfully assaulting another member by grabbing him about the throat.
         Award: Forfeiture of $100.00 per month for 1 month, restriction and extra duty for 14 days (suspended for 6 months).
980925:  NJP for violation of UCMJ, Article 86: Absence with leave, violation of UCMJ, Article 91: Willfully disobeying, noncommissioned or Petty Officer, violation of UCMJ, Article 92: Failure to obey order, violation of UCMJ, Article 134: Drunk and disorderly on or about 980905.
         Award: Forfeiture of $591.60 per month for 2 months (suspended 6 months). Restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
990127:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990119, tested positive for THC.

990130:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
         Award: Forfeiture of half month’s pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
990225:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: After giving this case due consideration I recommend GSMFR C_ (Application) be processed for separation under other than honorable conditions for misconduct – drug abuse of the following: Violation of UCMJ, Article 112a: Wrongful use, possession, etc, of controlled substances, on or about 990111, submit to a command authorized random urinalysis on board USS ARLEIGH BURKE, and did test positive for Tetrahydrocannabinol (THC) as per message DTG 272030Z JAN 99 NAVDRUGLAB JACKSONVILLE, FL. GSMFR C_ (Applicant) has waived his right to an administrative board and to consult with counsel and concurs with this separation.

990315:  Commander, Naval Surface Force, U. S. Atlantic Fleet authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Complete Discharge Package Unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990315 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issues 1and 2: The Applicant states that he was told that after six months he could have his discharge upgraded. There is no law or regulation that authorizes a discharge to be automatically upgraded after six months. A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. The Board does not automatically upgrade a discharge after six months. Relief denied.

There is credible evidence in the record that the Applicant used illegal drugs. 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 NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 18, effective 12 Dec 97 to 19 May 99, 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C. 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.
D. 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.

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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