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NAVY | DRB | 2004_Navy | ND04-01163
Original file (ND04-01163.rtf) Auto-classification: Denied


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

ex-SKSA, USN
Docket No. ND04-01163

Applicant’s Request
The application for discharge review was received on 20040709. 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 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 20041222. 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. “I know it was my fault. I had a drug problem but I believe I did not have the resources in the military to get the help that I needed. I am requesting a second chance for my mistakes. For more information, please see my attached letter. Thank-you.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Applicant’s ltr dtd 040525
Ltr frm Mrs. R_ N_ undtd
Ltr frm Rev. M_ A_ dtd 040429
Ltr frm R_ A. S_, MFT dtd 040609
Ltr frm J_ S_ and C_ S_ dtd 040505
Certificates from Warm Springs dtd 020630 and 020712
Warm Springs discharge certificate dtd 020719
Maryland Foundation certificate dtd 030609

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     941108 - 950207  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 950208               Date of Discharge: 980204

 Length of Service (years, months, days):

         Active: 02 11 27
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 58

 Highest Rate: SKSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 1.00 (1)                OTA: 2.17

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: 2

 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 :

950601:  NJP for violation of UCMJ, Article 134: Drinking under age.
         Award: Forfeiture of $553 per month for 2 month(s), restriction and extra duty for 15 days, reduction. No indication of appeal in the record.

970523:  NJP for violation of UCMJ, Article 86: UA 970505 to 970507. Violation of UCMJ, Article 134: Drunk and disorderly.
         Award: Forfeiture of $553 per month for 2 month(s), restriction and extra duty for 45 days, reduction to E-2 susp 6 mos. No indication of appeal in the record.
970223:  Retention Warning: Advised of deficiency (UA, drunk and disorderly), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

971209:  Applicant UA for 2hrs 15min.

971224:  NAVDRUGLAB, SANDIEGO, reported Applicant’s urine sample, received 971215, tested positive for [METHAMPHETAMINE].

980104:  Drug and Alcohol Abuse Report: Abuse, amphetamines, ashore, off-duty. Separate no via VA hospital.
980109:  NJP for violation of UCMJ, Article 86: Failure to go to alcohol awareness interview on 971202. Violation of UCMJ, Article 112a: Wrongul use of methamphetamines on 971209.
Award: Forfeiture of $519.00 per month for 2 month(s), restriction and extra duty for 45 days, RIR. No indication of appeal in the record.
980112:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct to commission of a serious offense as evidenced by your nonjudicial punishments.
980112:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
980129:  CO, Cruiser-Destroyer Group One directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and by reason of misconduct due to a pattern of misconduct.

980204:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use).
980209:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980204 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 Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant’s statement, that he does not believe he had the resources in the military to get the help he needed, does not refute the presumption of regularity in this case. 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.
An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by three nonjudicial punishment proceedings for violations of Articles 86, 112a and 134 of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.
The following is provided for the edification of the Applicant. 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, 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 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 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. 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), Change 18, effective 12 Dec 97 to 19 May 99, 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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