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NAVY | DRB | 2004_Navy | ND04-00407
Original file (ND04-00407.rtf) Auto-classification: Denied


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


ex-AR, USN
Docket No. ND04-00407

Applicant’s Request
The application for discharge review was received on 20040112. 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 review was conducted in Washington, D.C. on 20041015. 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. “DD Form 1966/2 1966/3 Section VI YNC(SS) B_ did not send DD form 369 to Law enforcement Agencies. Also states I am a good risk for enlistment, I had completed the 11 th grade. Delayed entry finished 12 th grade & waiver granted.”
2. “My DD214 is not dated. My misconduct was related to using drugs. I was not allowed to go into a drug and alcohol program. I was placed on restriction awaiting a discharge with ½ months pay times two deduction over a period of 54 days. I served the restrictions and was processed out.”
3. “With no rehabilitation I brought the drug issues back to Maryland. With a low self-esteem and no understanding of what I was doing I served time in Kent County Detention Center for using Drugs while incarcerated I was let out on work release. I attended rehab counseling and am presently on probation. I have a full time job at McDonalds. My Mother’s prayers, my church family and God keep me focused on making my life right. As a young man I was lost. Today I desire to live according to God’s will for my life.”
4. “In my lost state of mind, the navy finance department alledges I owe them$16,819.69. I had direct deposit while in the navy. In my ignorance and drugged mind I did not close the account. I have called and it is open with $500.00 in it. I lost my wallet, the police sent a letter to inform me of such though I never reposed it. I believe I am a victim of Identification theft.”
5. “An upgraded discharge would free my mind and spirit from the bondage of failure. I feel I would be able to stand and make a difference in my community and to myself. This experience has enlighten me wholeheartedly, I fell to drugs, today I am lifted to live. Thank you in advance for your attention to this matter.”
6. “Dept of Finance is still updating my W2 as of 2003-12-03. I’ve been discharged since 01.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Applicant’ s DD Form 214
Copy of Applicant’s enlistment contract (10 pages)
 Trial Summary, District Court of Maryland for Kent County
Defendant Probation Summary, District Court of Maryland for Kent County
Kent County Health Department, Outpatient Addiction Services
Letter from Applicant
Kent County News, Courthouse Calendar
 Letter from Defense Finance and Accounting Service (3 pages)
 Letter from Allied Interstate, Inc., Debt Delinquent Notice
 Letter from Chestertown Police Department
Copy of Applicant’s W2 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000918 - 010130  COG
         Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 010131               Date of Discharge: 011211

 Length of Service (years, months, days):
         Active: 00 10 11
          Inactive: None
Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 35
Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 1.00 (1)    Behavior: 1.00 (1)                OTA: 1.17

 Military Decorations: None
Unit/Campaign/Service Awards: NDSM

 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 :

010929:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order or regulation, violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of ½ month’s pay per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
010131:  Applicant discharged 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 20011211 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).

Issues1 and 2: 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 Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant’s allegations, that he was denied assistance and counseling for his personal problems, do not refute the presumption of regularity in this case. 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.

Issue 3: The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle, and certification of non-involvement with civil authorities. The Board commends the Applicant’s efforts at rehabilitation, however, as of this time, the Applicant has not provided any documentation for the Board to consider. Relief denied.

Issues 4, 5, and 6: There is no requirement or law that grants recharacterization solely on the issue of discharging a debt owed to the government 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 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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