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NAVY | DRB | 2004_Navy | ND04-00576
Original file (ND04-00576.rtf) Auto-classification: Denied


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


ex-HTFA, USNR
Docket No. ND04-00576

Applicant’s Request
The application for discharge review was received on 20040226. 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 20041001. 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 3630620.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
Applicant’s issues, as stated on the application:

 1. “I was discharged from the U.S. Navy in 1996, at the time I was 19 years old. I had received an other than honorable discharge do to misconduct. I had experimentally used illegal drugs on a one-time basis, which had proved to be my last. I'm thankful for this action because it brought me to another level of maturity & responsibility. This circumstance was one of the hardest actions personally I had to face. I let myself down, my family and lost all hope of ever having an accomplished Navy career. Since this discharge I have entered the civilian world with full initiations of living a productive life drug free. I have attended commercial dive school in Seattle, WA in 1997 and graduated in 1998. I know work as a Union Construction Diver working on various projects and have been a foreman on many projects for the last 2 years. I also have 2 small children and have married all of which play a vital role in becoming a mature, responsible adult. I don’t condone my actions by any means regarding this discharge, but can honestly say I have been strong enough to move on and maintain a decent life.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Resume
 Copy of Diploma from Divers Institute of Technology
 Copy of Certificate of Completion from American Society for Nondestructive Testing
 Copy of Certificate of Completion from Divers Institute of Technology
 Letter from Applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     None
          Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 941011               Date of Discharge: 960930
Length of Service (years, months, days):

          Active: 01 11 06
          Inactive: 00 00 13

 Age at Entry: 18                          Years Contracted: 8

Education Level: 12                        AFQT: 50

 Highest Rate: HTFN
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 3.00 (1)                OTA: 2.67
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, 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 3630620.

 Chronological Listing of Significant Service Events :

941024:  Ordered to active duty for 36 months under the Fireman Apprenticeship program.

 960729:  NAVDRUGLAB [SAN DIEGO, CA], reported Applicant’s urine sample, received 960722, tested positive for [Methamphetamine].
960807:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of $490.35 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
960819:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse.
960819:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
960820:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
960930:  BUPERS directed 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 19960930 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: Normally, to permit relief, an 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 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.

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. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief denied.

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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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