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NAVY | DRB | 2004_Navy | ND04-01076
Original file (ND04-01076.rtf) Auto-classification: Denied


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

ex-ATAN, USN
Docket No. ND04-01076

Applicant’s Request
The application for discharge review was received on 20040622. 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 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 20041122. 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. “Dear Board of Review:

After almost 1 year from being discharged I still regret what I did. Being discharged from the Navy for a drug incident has been very disappointing to me, my family, and my friends in the service. I realize what I did was very “stupid”, irresponsible, and disrespectful to the Navy, my commanding officers, and my shipmates. I always understood the zero tolerance for drug use in the military. I made a very bad decision on that day and I have paid dearly for that mistake. I sincerely regret what I did. Facing the consequences of my behavior has led me to become a more grown-up and responsible person. I am so sorry for what I did, but I am looking ahead to my future.

My behavior on that day did not live up to the Navy core values, but throughout my service I tried my hardest to serve the Navy and my country with HONOR, COURAGE, and COMMITMENT. For example, I received the Naval and Marine Corps Achievement Medal for my 6 month deployment during Iraqi Freedom. I volunteered to go on that six month deployment, after just returning from a previous six deployment, as I wanted to fight for my country against terrorism.

On my first deployment for a six month counter drug operation, my commanding officer commended me for my work on a community relations project and I earned my aviation enlisted warfare specialist wings. On my second deployment I received Plane Captain of the Quarter for discovering a cracked fuel line on our SH60 Bravo helicopter, a good conduct award, and a Naval and Marine Corps Achievement Medal. I am not “bragging,” I just want the Members of the Board to realize I served with some honor, courage and commitment. Even during my separation process, when I was transferred to 1 st LT, waxing and stripping decks, I still obeyed my superiors, did not do any more drugs, worked my hardest, did not cause any trouble, even while I was being harassed by other sailors. I knew what I did was very wrong and I was being punished for it and I still continued doing my job 110%.

Members of the board, please give me a chance to start over fresh and clean. I am respectfully requesting my current discharge to be upgraded to General Under Honorable Conditions. I want to advance myself so much. I appreciate the opportunities that the Navy provided for me and regret that I was not able to fulfill my commitment to the Navy and the opportunity to serve my country. Thank you very much for your time and consideration.

Sincerely,

T_ L_ C_ (Applicant)
SSN (deleted)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Letter from T. J. W_
Copy of NAM
Copy of GCA
Letter from G.C. D_
Evaluation reports (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000314 - 000424  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000425               Date of Discharge: 030814

 Length of Service (years, months, days):

         Active: 03 03 20
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 35

 Highest Rate: AT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (2)              Behavior: 4.0 (2)                 OTA: 3.53

 Military Decorations: None

 Unit/Campaign/Service Awards: NAM (2), NER (2), NDSM, SSDR (2), GCM, EAWS

 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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

 000313:  Applicant briefed on Navy's policy of drug and alcohol abuse, signed by the Applicant.

001027:  Retention Warning: Advised of deficiency (driving under the influence of alcohol), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 010125:  Retention Warning: Advised of deficiency (Assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 030711:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030709, tested positive for cocaine.

030724:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 030709.
         Award: Forfeiture of $764 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
030724:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030724:  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.
030731:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030806:  Commander, Navy Region Southeast 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 20030814 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: Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of non judicial punishment (NJP) for violating the UCMJ, Article 112a and two discharge warnings for driving under the influence and assault, thus substantiating the misconduct for which he was separated. Drug abuse warranted processing for separation, normally under other than honorable conditions. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. 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 continuing educational pursuits, 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.

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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