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NAVY | DRB | 2004_Navy | ND04-00582
Original file (ND04-00582.rtf) Auto-classification: Denied


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

ex-DCFA, USN
Docket No. ND04-00582

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 discharge 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 1910-146, formerly Article 3630620.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based on one isolated incident in twenty one months of service. I realize I made a mistake in judgement but I had not used drugs before the incident nor have I since. I regret my lapse in judgement and do not think my punishment was unfair. However, the condition of my discharge prevents my applying for some jobs. Being discharge was severe punishment for a one-time offense but I knew the no tolerance policy. I respectfully request that you change my discharge status to general under honorable conditions. ”

Submitted by Applicant subsequent to submission of application:

2. “Dear Sirs:

Thank you for accepting my application for discharge review.

I enlisted in the Navy in April of 2001. After Basic Training, I attended Damage Control A School in Great Lakes. Upon successful completion of A School, I was thrilled to be assigned to the USS Cole, then still docked in Mississippi for repairs. I do not think that there will be any greater moment in my life than when the Cole pulled into the Norfolk Naval Station after her repairs had been completed. It was an almost overwhelming honor to serve on that ship.

I say all this to also say that it is hard for me to convey exactly how disappointed I am in myself for what I did that caused me to be discharged from the Navy. I do not know to this day why I chose to smoke a joint the night I did. I do not use drugs. During the entire time I was enlisted, I had no disciplinary actions. I do know that the senselessness of what I did and the effect of my actions haunts me every day and I truly regret my decision.
I ask that you as a Review Board consider my service record and the supporting documentation that I have enclosed with this letter in your review. I know that I made a mistake that resulted in the discharge, but my service record indicates that I performed well while I was in the Navy. The supporting documentation with this letter includes character references, job performance records, community involvement, and other correspondence indicates that, based on who they know me to be and what my life stands for, other support my assertion that what I did was the result of a one-time lapse in judgment. I am still paying for that lapse in judgment by having been discharged under less than honorable conditions.

I ask that you recharacterize my discharge to general based on the fact that the incident was isolated and uncharacteristic of my lifestyle or behavior, that I realize the gravity of my mistake, and that I have provided evidence that I continue to lead an independent and productive life since my discharge."

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214 (2 copies)
Letter from Applicant, dated 29 Apr 2004
Character Reference Letter from Representative J. G_ B_, Third District, South Carolina, dated 20 Apr 2004
Character Reference Letter from Mr. J_ D_, dated 29 Apr 2004
Character Reference Letter from Mr. K_ N_, dated 29 Apr 2004
Character Reference Letter from Mr. D_ L_, dated 19 Apr 2004
Character Reference Letter from Mr. D_ D_, dated 13 Apr 2004
Character Reference Letter from Mr. E_ T_, dated 28 Apr 2004
Character Reference Letter from Mr. D_ S_, dated 28 Apr 2004
Character Reference Letter from Mr. S_ S_, dated 22 Apr 2004
Character Reference Letter from Pastor J_ B_, dated 25 Apr 2004
Criminal Records Check, Walhalla Police Department, dated 16 Apr 2004
Character Reference Letter from Mr. A_ G_, dated 25 Apr 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000414 - 000519  ELS
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 010430               Date of Discharge: 030124

 Length of Service (years, months, days):

         Active: 01 08 25
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 78

 Highest Rate: DCFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*No marks found in service record

 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 :

030108:  NAVDRUGLAB, Jacksonville, reported Applicant’s urine sample, received 030106, tested positive for THC.
030114:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $675 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
030115:  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.
030115:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights right.
030116:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030122:  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 20030124 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. An 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 Articles 112a of the UCMJ for admitted marijuana use. 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.

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 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. To date, the Applicant has submitted an impressive array of character reference letters from co-workers, educators, pastors and a Member of Congress. While these references clearly indicate that the Applicant is firmly on the path of rehabilitation and reconciliation, as of this time, the Board has not been sufficiently convinced that an upgrade is warranted on this basis alone. Relief denied.

There is no law or regulation that provides recharacterization solely on the issue of obtaining Veterans' benefits, or enhancing employment and educational opportunities and this issue does not serve to provide a foundation upon which the Board can grant relief. 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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