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NAVY | DRB | 2004_Navy | ND04-00745
Original file (ND04-00745.rtf) Auto-classification: Denied


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


ex-AOAR USN
Docket No. ND04-00745

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 honorable. The Applicant requests a documentary record discharge 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 20041029. 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: GENERAL (UNDER 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 have positive proof that the Navy performed falsification of legal documents regarding my discharge physical which could be a matter of life and death right now. I was pregnant at time of discharge and did not know until Beginning of November which I could have been under medical care had I known I was pregnant. I was on the Deps Provera shot which caused my menstrual cycle to be very erratic. Due to a previous miscarriage I am at a high risk on January 20, 2004 I was given an emergency C-section. Since my son was born 2 and half months early there are no guarantees on his survival because he is in extreme critical condition. Also at the time of discharge I was receiving freezing treatments due to physical problems in my cervix. I had never seen a dentist from A-school to time of discharge either. And Lemore was signed off to say I saw a dentist.”
Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION." None were found.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Letter to Member of Congress from Applicant, undated
Copy of Letter to Member of Congress from Applicant’s mother, (3 pages) dated    October 26, 2003
 Copy of Applicant’s DD Form 214
 Copy of Letter of Deficiency as to Administrative Discharge Board, (3 pages) dated       September 18, 2003
 Copy of Article on substances that can cause false positives on a drug test
 Copy of Drug testing information, dated 08/08/2003
Copy of Laboratory results, dated August 8, 2003
 Copy of Character reference, dated July 22, 2003
 Copy of Character reference, dated August 12, 2003
Copy of Character reference, dated July 24, 2003
 Copy of Character reference, dated August 3, 2003
 Copy of Character reference, dated August 1, 2003
 Copy of Administrative Discharge Board findings (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     020717 - 020728  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 020729               Date of Discharge: 030926

 Length of Service (years, months, days):
         Active: 01 01 28
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 58
Highest Rate: AOAA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 1.83
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

020715:  Applicant briefed on Navy's policy of drug and alcohol abuse.
030611:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030609, tested positive for amphetamine/methamphetamine.

 030724:  NJP for violation of UCMJ, Article 112a (2 Specs): Wrongfully use methamphetamine.
         Award: Forfeiture of $500 per month for 1 month, reduction to E-1. No indication of appeal in the record.
030714:  Retention Warning: Applicant advised that she failed the physical readiness test on 4/27/03 by failing the run/walk, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030728:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030725:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
030911:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

030922:  Commanding Officer directed discharge general (under 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 20030926 with a general (under 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, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant alleged that documents pertaining to her discharge physical had been falsified. The record, however, contains no evidence of any wrongdoing in the discharge processing. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

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 her conduct or that she should not be held accountable for her actions.

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 five letters of character reference and one civilian drug lab report as documentation of her post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, 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 her characterization of discharge. Therefore, no relief will be granted.


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 her 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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