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NAVY | DRB | 2004_Navy | ND04-00434
Original file (ND04-00434.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND04-00434

Applicant’s Request
The application for discharge review was received on 20040121. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge 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 20040922. 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 served my country for 4 years during very difficult times and I did make a mistake by getting into a fight and smoking a marijuana cigarette but I was not/am not a chronic user. I have been employed full time immediately following my discharge and immediately passed another drug screening at my current employer. I was not thinking when they discharged me or I would have contested it then. It was so close to being discharged but I didn’t realize that it effected all of my benefits. I enlisted from high school after completing 4 years of JROTC and I gave 4 good years of service. Please reevaluate my discharge status so that I can receive my GI for school and my VA for a home loan. Thank You.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)
Captain’s Mast Accused’s Acknowledgement of Appeal Rights, signed March 18, 2003
Performance of extra duties, dated March 18, 2003 (2 pages)
Restriction Orders, dated March 18, 2003
Evaluation Report, dated May 27, 2002 (2 copies)
Evaluation Report, dated for period (00 June 19 – 01 June 15)(2 copies)
Evaluation Report, dated June 23, 2000
Evaluation Report, dated February 15, 2000
Citation from Commander Carrier Group Seven, undated
Letter of Appreciation, dated January 29, 2003
Navy Unit Commendation citation, dated October 02, 2002
Travel Certificate, dated April 07, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     981008 - 990728  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 990729               Date of Discharge: 030411

 Length of Service (years, months, days):

         Active: 03 08 13
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 32

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: *3.00 (5)   Behavior: 2.60 (5)                OTA: 2.93

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (2), NUC, BER, AFEM, MUC

 Days of Unauthorized Absence: None

*Applicant provided copy of 4 evaluations.

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 :

030226:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030221, tested positive for THC.

030318:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
         Award: Forfeiture of $814.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
030318:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030318:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

030322:  Substance abuse screening results and treatment recommendation: Applicant was screened by a Navy Drug and Alcohol counselor on 030322 due to a positive drug result on a urinalysis test. Counselor states that Applicant does not meet criteria for drug abuse or dependence at this time.
030327:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment.

030402:  Commander, Carrier Group Seven authorized 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 20030411 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. 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 Applicant states he served his country for “4 years during very difficult times.”
Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. 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), 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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