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NAVY | DRB | 2004_Navy | ND04-01016
Original file (ND04-01016.rtf) Auto-classification: Denied


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

ex-MSSA, USN
Docket No. ND04-01016

Applicant’s Request
The application for discharge review was received on 20040607. 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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I RESPECTFULLY REQUEST THAT MY DISCHARGE BE UPGRADED TO HONORABLE. THE INCIDENDT WAS AN ISOLATED ONE AND OCCURRED WHEN I WAS VERY YOUNG AND SHOWED BAD BEHAVIOR. THE PEOPLE WHO WERE INFLUENCING ME HAVE BEEN OUT OF MY LIFE SINCE AND I HAVE DONE NOTHING OF THE SORT SINCE. I WAITED TEN YEARS SO YOU COULD SEE THAT I REALLY REGREAT THIS AND HAVE MADE A GREAT EFFORT TO ENSURE THAT IT NEVER HAPPENS AGAIN. THIS WAS A ONE TIME EVENT, I SHOWED VERY BAD JUDGEMENT, AND I REGREAT IT VERY MUCH. I HOPE THAT OVER THIS TIME I HAVE SHOWN THAT IT WILL NEVER HAPPEN AGAIN, AND THAT I HAVE EARNED THIS UPGRADE.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USMCR (J)                        900700 - 910800  ELS
         Inactive: USNR (DEP)              911113 - 920520  COG

 Period of Service Under Review :
Date of Enlistment: 920521               Date of Discharge: 930611

 Length of Service (years, months, days):

         Active: 01 00 21
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 63

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.87 (3)    Behavior: 2.67 (3)                OTA: 3.70

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SWASM (2), B“E”A, SSDR

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

930421:  Applicant signed a Urinalysis consent form to a probable cause urinalysis after the command was informed of his association with another service member charged with use of marijuana. [Partially extracted from MSG from HELANTISUBRON FOURTEEN MSG 171930Z MAY 93.]

930428:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 930421, tested positive for THC.

930511:  NJP for violation of UCMJ, Article 112A: Wrongful use of marijuana on or about 930421.
         Award: Forfeiture of $407.00 per month for 2 months, restriction for 30 days, reduction to E-2. No indication of appeal in the record.
930512:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the use of marijuana.
930514:  Applicant advised of rights and having consulted 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 and to submit statements on his behalf either verbally or in writing. Applicant did not object to separation.

930518:  Medical Evaluation: Applicant is a non-drinker and used marijuana on an experimental basis.
         Assessment: Applicant was not using prescribed medication in which would account for his actions or positive urinalysis. Applicant is not a drug abuser or drug dependent. Applicant does not require rehabilitation and does not require detoxification. Applicant has not received prior inpatient care for drug dependence.
        
930528:  Commanding Officer recommended characterization of service as general under honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis on 930421. Commanding Officer’s comments (verbatim): In the case of MSSA K_ (Applicant), a characterization of service as general under honorable conditions is the most appropriate for the service member. MSSA K_ (Applicant) has not been a problem in the six months he has been on board. His performance indicates that he could have been an asset and a leader. Unfortunately a mistake in judgment curtailed a potential career.

930601:  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 19930611 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. Relief denied.

The Applicant contends that his problems in the Navy can be attributed to his being very young and the “people who were influencing me.” While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either 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. 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 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. At this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.

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), Change 5/93, effective
05 Mar 93 until 21 Jul 94, 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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