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NAVY | DRB | 2004_Navy | ND04-00404
Original file (ND04-00404.rtf) Auto-classification: Denied


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

ex-SM3, USN
Docket No. ND04-00404

Applicant’s Request
The application for discharge review was received on 20040115. 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 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 SM3 D_ D_ C_ (Applicant) am requesting an upgrade in my discharge status of the U.S. Navy from “Other Than Honorable” to an “Honorable” status. I realize now that I made a huge mistake by smoking marijuana when I was on leave status during the month of May. I have been and still am going through some heavy stress with my personal family life including issues with the custody of my son and future job status. I felt like everything that I had work hard for was coming apart at the seams and I did not know how to cope with my own personal disappointments. During my career with the Navy, I was granted custody of my son, which has been very tacking on my family. Thankfully, because of them my son has a loving home. However, the concerns and trails of being a young single father and trying to handle the multitude of responsibilities were quit over whelming at times. An unexpected health problem occurred in my family only made an already difficult time harder. During these times I requested a discharge under parental conditions. Not being granted my request along with me losing my rank added to the high stress level that I was already dealing with. As I see this situation in hindsight, I wish I had asked for assistance with coping with my high level of stress, instead of committing an unlawful act in smoking marijuana. At this time, I request the U.S. Navy to accept my most sincere apology for acting other than the appropriate manner in which we were trained. Therefore, I am asking the Board to please reexamine my military records and my accomplishments I succeeded in the short time of my Navy career, rather than solely on the very last infraction that occurred. Overall, I have gained great deal of respect and experience while enlisted in the U.S. Navy and know that it will always be a proud time in my and forever reflect positively in my respect for our country. I went in as a naïve teenager and even with my habits, I came out a better man. If I am granted an “Honorable Discharge,” I would be able to continue my education and career.”

 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)     990723 - 990811  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 990812               Date of Discharge: 030729

 Length of Service (years, months, days):

         Active: 03 11 18 (Does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: SM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)    Behavior: 3.75 (4)                OTA: 3.43

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM

 Days of Unauthorized Absence: 1

 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 :

030128:  Performance evaluation states Applicant transferred to TPU Norfolk for Parenthood Separation.
030605:  Applicant declined any screening or treatment after screening by the Command DAPA.
030611:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030605, tested positive for THC.
030625:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030625:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
030626:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 030616 to 030617, violation of UCMJ, Article 112a: Wrongful use of marijuana on 030522 and 030603.
Award: Forfeiture of $832.00 per month for 1 month, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
030716:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: SM3 C_ (Applicant) reported to Transient Personnel Unit, Norfolk on 030129 from USS WINSTON S CHURCHILL (DDG81) for administrative separation processing due to parenthood. He subsequently withdrew his request for separation and requested to remain on active duty until his EAOS. On 030522 a command directed urinalysis was conducted and SM3 C_ (Applicant)’s sample tested positive for marijuana. A second urine sample was collected on 030603, which also tested positive but with a higher nanogram level. SM3 C_ (Applicant) blatantly violated the Navy’s “zero tolerance” drug policy twice and has no potential for further service. Accordingly, I emphatically recommend him for immediate separation from the U.S. Navy under other than honorable conditions.

030717:  Commander, Navy Region, Mid-Atlantic authorized 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 20030729 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. There is credible evidence in the record that the Applicant used illegal drugs. Drug abuse warranted processing for separation. 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 Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment or education opportunities, or for 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. Verifiable proof of any 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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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