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NAVY | DRB | 2004_Navy | ND04-00578
Original file (ND04-00578.rtf) Auto-classification: Denied


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

ex-CM3, USN
Docket No. ND04-00578

Applicant’s Request
The application for discharge review was received on 20040227. 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 20041112. 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 wish to correct an event in my life that continues to impact my life to this day.

I served my country honorably for 7 years, and received several citations.

I made a mistake at the end of my second enlistment that did not accurately relect my service to my country.

I firmly believe that due to the personal conflict I was experiencing at that time created an intolerable situation for me. Because of my impending divorce and the thought of loosing my children, I was under extreme emotional duress.

I currently serve as 1 st Lieutenant in the local fire department. I continually volunteer my service to the local senior citizens center and I am in good standing with my parish and frequently volunteer to help in the church and in my community.

I am in good standing in my community and wish to be in good standing with my country.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from Applicant’s father
Letter from J_ L_
Two employment reference letters from D_ S_
Volunteer service letter from the Anton Chico Fire Chief
Character reference from E_ L_-R_
Urine sample report and consent to urinalysis (2 pp.)
Two character references from Fr. P_ S. O_
Professional level CPR certification card

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900510 - 900827  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 900828               Date of Discharge: 970228

 Length of Service (years, months, days):

         Active: 06 06 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (33 months extension)

 Education Level: 12                        AFQT: 42

 Highest Rate: CM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.29 (11)   Behavior: 3.00 (11)               OTA: 3.26

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, BER, GCM, JMUC, SSDR (3), HSM, JSAM, Expert Rifle Ribbon

 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 :

960923:  Mental Health Department, NH Corpus Christi, TX concurred with CAAC diagnosis of alcohol dependence. Recommended Level III treatment.
961115:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana in July 1996.
Award: Forfeiture of $677.00, reduction to E-4. No indication of appeal in the record.
970107:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis of 960731.
970110:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
970117:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

970118:  DAAR. Marijuana use, frequency not determined, as a result of a medical examination. Physician determined dependence and recommended Level III treatment via a VA hospital. Applicant declined treatment.
970312:  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 19970228 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, or 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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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