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NAVY | DRB | 2004_Navy | ND04-01045
Original file (ND04-01045.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND04-01045

Applicant’s Request
The application for discharge review was received on 20040616. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to San Diego, CA or a documentary review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region. Subsequent to the application, the Applicant requested a documentary record discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050323. After a thorough review of the available 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. “Respectfully request an upgrade to Honorable because it was stated at Captains mass that if I become a functioning member in society I would be eligible for an Honorable discharge, by submitting a DD Form 293”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     880601 - 881004  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 881005               Date of Discharge: 910815

 Length of Service (years, months, days):

         Active: 02 10 11                  [Does not exclude lost time]
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 12                        AFQT: 42

 Highest Rate: DKSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.67 (3)             Behavior: 3.47 (3)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SASM, HSM, SSDR

 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 :

910517:  To confinement.

910624:  From confinement.

910624:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession, etc.
         Award: Forfeiture of $422 per month for 2 months, extra duty for 45 days, reduction to E-2, removal of designation. No indication of appeal in the record.
910624:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization of service as under other than honorable conditions. [Extracted from Commanding Officer’s message dated 910625.]
910624:  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. [Extracted from Commanding Officer’s message dated 910625.]
910625:  Medical evaluation for drug abuse: MBR admitted marijuana use to NIS. Now being processed administratively. Review of drug use – “every blue moon” – holiday, special events only recreational type use.
 Imp- Drub abuse. Marijuana – no evidence of dependency.
Plan – 1) MBR already attended 2 wk course (level II) 2) Process, no VA drug rehab necessary.
Addendum – Mental status from exam normal. Appears mentally competent to understand the proceedings against him.

910625:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): By his own admission DKSA L_ (Applicant) violated the UCMJ frequently by using drugs 20-30 times during the past couple of years. Numerous other drug related charges generated by an NIS investigation were dropped for lack of solid evidence; however, it is clear that DKSA L_ (Applicant) is more than just a recreational user. Special Courts-Martial charges were dropped on request from trial counsel after working out an agreement in which DKSA L_ (Applicant) would testify for the government in two pending General Courts-Martial stemming from the same NIS investigation. I strongly recommend a separation under other than honorable conditions.

910626:  Drug and Alcohol Abuse Report: Marijuana abuse/possession, ashore off duty. Identified by inspection on 910516. Commanding Officer recommended separation. Comments: SA L_ (Applicant) took it upon himself to strike out of deck and learn the Disbursing Clerk rate. He worked very hard during WESTPAC to gain the knowledge necessary to become a DK. He learned the DK rating fast and he became a very important part of the Disbursing Office. He always did what was asked of him, and never complained. He was Supply Departments best compartment cleaner and always kept disbursing passageway spotless. However, this one critical mistake erases all the positive things he has accomplished. He knew what he was doing was wrong and doesn’t deserve another chance.

910724:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).




Complete discharge package not contained in service record

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910815 under other than honorable conditions by reason of misconduct due to drug abuse. (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (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 states he requests an upgrade to his character of service because, “it was stated at Captains [mast] that if I become a functioning member in society I would be eligible for an Honorable discharge.” A former service member has 15 years, from the date of discharge, to petition the Board for consideration of an upgrade. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. Relief based on post-service factors would be inappropriate.

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 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

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

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

D. 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.

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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