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NAVY | DRB | 2004_Navy | ND04-00852
Original file (ND04-00852.rtf) Auto-classification: Denied


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


ex-ATAA, USN
Docket No. ND04-00852

Applicant’s Request
The application for discharge review was received on 20040428. 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: 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. “Respectfully requesting upgrade for civil service job opportunities such as police/firefighter jobs, which exams I will be taking. My discharge was improper because of the way that my last year in the Navy was handled. My chain of command was almost should I say corrupt. They changed parts of my service record which now I do not have, after I was awarded OTH discharge by commanding officer I was still in the Navy many months later, and every time I asked what was going on they (LCPO, CPO’s) would tell me to shut up & not worry about it. When the legal dept. LCPO Chief D_ realized I was still aboard the command, she wanted to know why. She saw that my service record had been tampered with for example it said in my record that at mast I received a good conduct award. This is when my LCPO ATCS K_ told me to leave the ship at 1600 and do no dare return or he + others would make my life more than living hell.

He only did this so that I could not be around to explain that I had known about them doing these things. He then told me to go home + assured me I would received my DD-214 in mail. I have many ex-shipmates who witnessed + know all that went on throughout the ranks.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010119 - 010220  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 010221               Date of Discharge: 030820

 Length of Service (years, months, days):
         Active: 02 06 00
         Inactive: None
Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 53
Highest Rate: ATAN

 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: 49
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620. Discharged in absentia.

 Chronological Listing of Significant Service Events :

011025:  NJP for violation of UCMJ, Article 134: Underage drinking on 010930, to wit: by consuming and possessing alcoholic beverages while under the age of 21.
         Award: Forfeiture of $243 per month for 1 month, restriction and extra duty for 7 days. Forfeiture suspended for 3 months. No indication of appeal in the record.
011025:  Retention Warning: Advised of deficiency (Underage drinking.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030313:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030304, tested positive for cocaine and THC.
030402:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug.
030402:  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.
030410:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 0635, 030224- 1200, 030227 (3 days), (2) Unauthorized absence 0645, 030305 to 1900, 030401 (28 days), violation of UCMJ, Article 112a (2 specs): (1) Wrongful use of marijuana on or about 030227, (2) Wrongful use of cocaine on or about 030227.
Award: Forfeiture of $645 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
030619:  Medical Officer, USS Ronald Reagan conducts separation physical on the Applicant, comments: “Positive urine drug screen for THC/cocaine. Completed Level III treatment program. Pending ADSEP.”
030801:  Applicant to unauthorized absence.

 030802:  Commanding Officer recommended discharge in absentia, with an under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.
030820:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority: NAVMILPERSMAN, Article 1910-146. Discharged in absentia.
Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20030820 under other than honorable conditions for misconduct due to drug abuse (A). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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 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.

Issue 2. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, Applicant alleged that he was wronged by his chain of command resulting in his other than honorable discharge. The record, however, contains no evidence of any wrongdoing by Applicant’s chain of command or anyone else involved 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.

The following is provided for the edification of the Applicant. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under 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 two nonjudicial punishment proceedings for violations of Articles 86 (49 days UA), 112a, and 134 of the UCMJ. 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.

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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