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NAVY | DRB | 2004_Navy | ND04-01115
Original file (ND04-01115.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND04-01115

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 honorable or 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.) My XO denied my right to a court marshal.

2.) There was less than a day between being charged and receiving NJP, eliminating my chance to mount a defense and call witnesses or collect statements on my behalf.

3.) The discharge is based solely on one incodent in my 3 years of service, when no other rules were broken. I had never even gotten a counseling chit before this.

4.) My offense doesn't meet requirements listed for a characterization of other than honorable. MILSPER definitions for discharges is included in documen #2"
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
One hundred and ninety-four pages from Applicant's service record
Letter from Applicant, dated June 22, 2004
Pages from MILPERSMAN (8 pages)
Benefits eligibility based on Type of discharge

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010207 - 010219  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010220               Date of Discharge: 031223

 Length of Service (years, months, days):

         Active: 02 10 04
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4 (12 months extension)

 Education Level: 14                        AFQT: 99

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (2)    Behavior: 3.50 (2)                OTA: 3.75

 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, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

010125:  Applicant signed understanding of Navy drug policy.

010206:  Applicant signed understanding of Navy drug policy.

030908:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030904, tested positive for THC.

030910:  NJP for violation of UCMJ, Article 112A: Wrongfully use a controlled substance, THC while ashore based on a urinalysis sample collected on 030830.
         Award: Forfeiture of $866 per month for 2 months, restriction for 30 days, reduction to E-3. No indication of appeal in the record.
030915:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030915:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
031103:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions. [Vote extracted from supporting documents provided by the Applicant .]

031125:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031203:  Commander, Submarine Force, U.S. Pacific Fleet 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 20031223 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).

Issues 1-4: The Applicant’s claim that he was denied the right to a court-martial and that he was not given enough time to prepare for his Captain’s Mast does not refute the presumption of regularity in this case. The Applicant states his discharge was based on one isolated incident in “three years of service.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, 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 for illegal drug use, thus substantiating the misconduct for which he was separated. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant also elected to consult with counsel and appear before an Administrative Discharge Board. The Administrative Discharge Board determined, by unanimous vote, that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge 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. At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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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