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NAVY | DRB | 2004_Navy | ND04-00743
Original file (ND04-00743.rtf) Auto-classification: Denied


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


ex-AR, USN
Docket No. ND04-00743

Applicant’s Request
The application for discharge review was received on 20040329. 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 discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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. “To whom this letter concerns,

 I was discharged from the Navy in June 2003 with an OTH because I failed a drug test for ecstasy. It was the worst time in my entire life for a multitude of reasons. I let my family down, the navy down, and God down. I want to say upfront that I take full responsibility for my actions. I took an oath to serve my country and God and follow the rules of the UCMJ. I failed all three of those things due to a curiosity for new things which I was not supposed to participate in. I experimented with ecstasy on two separate occasions in June of 2003. My reasons for trying the drug were because I wasn’t strong enough at the time to resist peer pressure. After my second time trying ecstasy I decided this was not the route I wanted to take. I had a random drug test two days later. Although the event was embarrassing and totally debilitating to me, I tried to forge ahead. In the brig, I went to almost every NA meeting. I went to those meetings to talk to other people about there drug experiences and tried to gain strengths so I would never use drugs again, in or out of the navy. When I was discharged out of the navy I went straight home to my family. They gave me support and encouragement to move on with my life and get back on track. I honestly have. Although places wouldn’t hire me because of my OTH, I finally got a decent job as an assistant manager at Abercrombie and Fitch. I’ve been working there for 6 months as a vital member of their team. In January I started taking college courses at College of DuPage in Glen Ellyn. I’m trying to get some general education requirements out of the way because I’m planning on applying at Roosevelt University for the fall. My intended major is public relations.
Other recent accomplishments are as follows: I’ve made two balloon payments on the money that I owe the government for my unserved portion of my sign-on bonus. I have NO civilian convictions or convictions pending for ANYTHING since I’ve been out of the navy. I haven’t used any kind of drugs since my second ecstasy experience in June of 2003. Most importantly however, I’ve put the pieces of my life back together and I’m more focused and determined then ever. Nothing can take back what I did, although I wish there was. I believe that the best explanation for my behavior is that I am a smart, honest kid who just lost his way for awhile and I have the rest of my life to regret it, learn from it, and succeed from it.
I do have specific reason for attempting to get my OTH to a general discharge. Some of those reasons are so I have a sense of hope and motivation in the future, so I’m able to get federal loans for a quality college education, and honestly, to start a new era in my life. Right what was wrong, make good what was bad. Being discharged with an OTH lingers over my head everyday. Its hard for me to find better jobs if I wanted and its becoming hard for me to finance my college education. College is very crucial for me. Knowledge is power and I’m so eager to learn and get a degree. Its one of the most important things to me. Also, other then my irresponsible actions, my navy career was terrific. I attached a letter of commendation to give an example. I really did learn about honor, courage, and commitment and got a lesson on what happens when you don’t have those personal qualities. I hope this statement has proven that I am a different person now then when I took that ecstasy and destroyed a very bright and prosperous navy career. I also hope this proves I know my faults in the past and I’m asking for forgiveness for the future. Thankyou.”

 The American Legion did not provide any issues.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of the Applicant’s DD Form 214
Letter of Commendation, dated June 21, 2002
 Receipt from Abercrombie and Fitch
 Earnings statement from Abercrombie and Fitch (2), dtd 02/07/2004 and 02/21/2004
College transcript, dtd 12/13/2003
 Money Order receipt
Account statement from DFAS (2), dtd 02/02/04 and 03/04/04

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     020321 - 020501  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 020502               Date of Discharge: 030611

 Length of Service (years, months, days):
         Active: 01 01 10         Does not exclude lost time
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 42
Highest Rate: An

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, AFEM, NDSM, NER
Days of Unauthorized Absence: 5

 *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 :

030423:  NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 030415, tested positive for MDMA.
030509:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your positive urinalysis result.
030509:  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.
030514:  Summary Court-Martial.
          Charge I: violation of the UCMJ, Article 112a (2 specs):
         Specification 1: Wrongful use ecstasy on 030401.
          Specification 2: Wrongful use methamphetamine on 030401.
          Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Forfeiture of $766.00, confinement for 30 days, reduction
to E-1.
          CA action 030514: Sentence approved and ordered executed.

030523:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030604:  Commander, Carrier Group EIGHT 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 20030611 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 NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant provided proof of employment and attendance at college as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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.

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 Applicant was found guilty by a summary court-martial of violating UCMJ Article 112a for wrongful use of ecstasy and methamphetamine, thus substantiating the misconduct for which he was separated. 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.

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:
                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                   Washington Navy Yard DC 20374-5023

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