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NAVY | DRB | 2004_Navy | ND04-01111
Original file (ND04-01111.rtf) Auto-classification: Denied


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

ex-AEAN, USN
Docket No. ND04-01111

Applicant’s Request
The application for discharge review was received on 20040629. 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 review was conducted in Washington, D.C. on 20050224. 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. “My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action. Please review attached documents. Thank you.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated 20 Jun 2004 (2 pages)
Letter of Commendation, Commander, Cruiser Destroyer Group Five
Letter of Appreciation, dated 07 Oct 2003
Letter of Commendation, Commander, Cruiser Destroyer Group Five
Letter of Commendation, Commander, Carrier Air Wing Eleven
Junior Wallbanger of the Quarter, dated 06 Apr 2003
Letter of Academic Achievement, dated 18 Dec 2002
Letter of Recognition, dated 30 Apr 2002
Command Endorsement for Aircrew Program, dated 25 Sep 2003
Character Reference Letter from AEC (AW) S_ E. M_, dated 23 Mar 2004
Character Reference Letter from T_ G. H_, undated
Character Reference Letter from AE2 (AW) N_ N_, dated 05 Apr 2004
Character Reference Letter from AE2 (AW) J_ D_, dated 05 May 2004
Character Reference Letter from A_ M_, undated
Character Reference Letter from S_ M. M_, undated
Certificate of Perfect Grade Point Average, dated 09 Apr 2004
Unofficial Student Transcript

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010718 - 010820  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010821               Date of Discharge: 031222

 Length of Service (years, months, days):

         Active: 02 04 01
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 72

 Highest Rate: AE3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)             Behavior: 3.00 (3)                OTA: 3.62

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, Flag Letter of Commendation, Letter of Commendation, Letter of Appreciation, Letter of Academic Achievement

 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 :

020219:  NJP held this date. [Extracted from NAVPERS 1070/604.]

 031109:  Applicant admitted to emergency room on apparent drug overdose.
031211:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. Applicant notified that least favorable characterization of service is under other than honorable conditions.
031211:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), 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 a statement.
031216:  NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation, violation of UCMJ, Article 112a: Wrongful possession, etc., of a controlled substance.
Award: Reduction to E-3. No indication of appeal in the record.
031217:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031218:  Applicant submitted a statement to Commander, Naval Air Warfare Weapons Center, Weapons Division, requesting a general discharge.

031222:  Commander, Naval Air Warfare Center, Weapons Division, 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 20031222 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use after an incident in which the Applicant was admitted to the hospital because of a drug overdose. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. 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. As such, relief is 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 Naval service. The NDRB is authorized, however, 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 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 sufficient documentation for the Board to consider. Relief denied.

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 additional 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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

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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