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NAVY | DRB | 2004_Navy | ND04-00961
Original file (ND04-00961.rtf) Auto-classification: Denied


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

ex-HTFN, USN
Docket No. ND04-00961

Applicant’s Request
The application for discharge review was received on 20040525. 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041103. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.





PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “I was discharged on the grounds of a urine scan done at the hospital while ill. I was taking an over-counter ephedra stimulant that showed positive on the test. I have no history, then or now of drug use. I was advised by MAA on board not to seek representation or contest charges, as the consequences would be “much worse” if I lost. I feel that as a young man of 18 at the time I was poorly advised.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s résumé (2 pages)
Unofficial transcript from University of Alaska ( Summer 2000 – Spring 2004) (12 pages)
State of Alaska Teacher Certification Application Institutional Recommendation, undated
Letter of recommendation from D_ W_, Director, Rural Alaska Honors Institute, undated
Letter of recommendation from C_ H_, Alaska Native Studies Administration, University of Alaska, Fairbanks, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     910625 - 910904  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 910905               Date of Discharge: 921209

 Length of Service (years, months, days):

         Active: 01 03 05
         Inactive: None

 Age at Entry: 17 (Parent Consent)       Years Contracted: 4 (24 month extension)

 Education Level: 12                         AFQT: 81

 Highest Rate: HT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (2)    Behavior: 3.30 (2)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

910907:  Applicant briefed on Navy's policy of drug and alcohol abuse.

 921013:  NJP for violation of UCMJ, Article 112a: Wrongful use of methamphetamine/amphetamine at San Diego, CFA on or about 920910.
         Award: Forfeiture of $450.00 per month for 2 months, restriction and extra duty for 45 days, oral reprimand and reduction to E-3. No indication of appeal in the record.

921014:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, to wit: violation of the UCMJ, Article 112a, wrongful use of methamphetamine on or about 920910 as evidenced by Commanding Officer’s NJP held on 921013.
921014:  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.

921027:  Medical evaluation: Y/O White male. Circumstances of alleged abuse: On routine urinalysis he was positive for methamphetamines. He states he has never knowingly taken any methamphetamines. He was taking ephedrine at the time. No family history for drug or alcoholism. Client’s belief of extent of problem: None – No problem exists. Objective evidence of drug/alcohol use. None.
         MD’s statement of psychological and physiological dependence: No drug or ETOH dependence (either psychologically or physiologically).

921101:  Substance Abuse Report: Commanding Officer has determined member is not dependent on drugs (based on medical officer opinion). Member’s past and present performance are above average. Member exhibits no potential for future productive service. Member being processed for administrative separation under other than honorable discharge. [Extracted from Commanding Officer’s USS MCKEE MSG 041709ZNOV92.]
921104:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

921110:  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 19921209 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 Applicant’s claim, that an over the counter stimulant caused a false positive on his urinalysis and that he has no past or present history of drug use, is not substantiated by any evidence. 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.

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. E vidence of a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.

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. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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