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NAVY | DRB | 2004_Navy | ND04-00474
Original file (ND04-00474.rtf) Auto-classification: Denied


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

ex-ET3, USN
Docket No. ND04-00474

Applicant’s Request
The application for discharge review was received on 20040130. 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 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 would like for the Board to address the fact of whether one incident, however irresponsible it may have been, should be allowed to mar the service record and ultimately the life of a sailor who had served honorably for seven years (LA National Guard and Navy.) My record will reflect that I was a competent and conscientious service member. So, I would like my discharge to reflect this also.

 2. To Whom It May Concern:

My name is D_ W_ ( Applicant ) and I am writing this letter in an attempt to obtain an up grade on my discharge. On October 17, 2002; I was found guilty of unlawful use of a controlled substance (marijuana) at NJP and was awarded reduction in rank to the next inferior rank (E-4), half a months pay for three months, removal of my SS designation, removal of my NEC (3533), and recommendation for administration separation. On December 6, 2002; I was administrately separated from the US Navy under Other Than Honorable Conditions and labeled as a drug abuser.

Since then my life has been a living nightmare. My family and I has moved back to Louisiana, and on or about December 10, I posted my resume on-line in hopes of finding a job so I can continue to support my family. The following morning I checked my email and found that four recruiters had responded. So, I thought to myself, “Maybe I do have a fighting chance." I called the first recruiter and told him my situation. His response was, “Ah-man, that’s too bad, I can't help you because we promise all our clients that we will only provide persons separated under Honorable Conditions only.” So I called the other three recruiters and got the same exact response. It was then I realized how huge of a mistake I had made. As of now I am unemployed, with no permanent residence, with no chance of getting unemployment benefits, and no way to support my family. As a resort my family and I have been forced to apply for public assistance. I true fully have come to regret the mistake I made. I loved my job.

I am writing this letter in hope that you will be able to help me in upgrading my separation, so I can move on and continue to support my family as I did while I was in the US Navy.”







 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Representative T. T_ T_, Louisiana House of Representatives, dated March 17, 2003
Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 from Army National Guard
Evaluation Report and Counseling Record, 01 JUN 16 to 02 MAR 15 (2 pages)
Evaluation Report and Counseling Record, 00 MAY 13 to 00 NOV 17 (2 pages)
Evaluation Report and Counseling Record, 00 NOV 17 to 01 MAR 30 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: USANG             970705 - 970830  UNCHARACTERIZED
                  USN                       981029 – 010331  HON

 Period of Service Under Review :
Date of Enlistment: 010401               Date of Discharge: 021206

 Length of Service (years, months, days):

         Active: 01 08 06
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6

 Education Level: 12                        AFQT: 81

 Highest Rate: ET2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2.72

 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 :

021010:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 021010, tested positive for THC.

021017:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 021007, to wit: marijuana.
         Award: Forfeiture of $1015.15 per month for 2 months, reduction to E-4. No indication of appeal in the record.
021104*:         Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
021104*:         Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

021104*:         Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
021107:  Commander Submarine Group 10 directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

*Month on letter is a typographical error. The month should be November.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021206 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 honorably for seven years and as such, 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 discharge 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 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 denied.

The Veterans Administration determines eligibility for post-service benefits not the NDRB. 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. 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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