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NAVY | DRB | 2004_Navy | ND04-01202
Original file (ND04-01202.rtf) Auto-classification: Denied


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

ex-QMSN, USN
Docket No. ND04-01202

Applicant’s Request
The application for discharge review was received on 20040722. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for discharge be changed. 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 and reason for the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“ISSUE (1) Upgrade to Honorable discharge.

ISSUE (2) Upgrade Discharge/reenlistment code. From RE-4 to RE-2 as I wish to reenlist in the US. Army as a warrant officer through the pilot program.

ISSUE (3) Change of reason for discharge. Reasoning for discharge is Drug use. I feel that ten years of low level jobs and a record of a tarnished past are adequate punishment for my past mistake. A copy document is issued on my behalf that states that I am and have been free from drug or Alcohol abuse since that time as was required to peruse port 141 flight training by federal authority.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Evaluation by licensed clinical psychologist, dated June 11, 1996
Letter to Federal Aviation Administration from licensed clinical psychologist, dated March 24, 1997

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920817 - 930531  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930601               Date of Discharge: 950224

 Length of Service (years, months, days):

         Active: 01 08 24
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 10                        AFQT: 57

 Highest Rate: QMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.20 (2)                OTA: 3.30

 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 3630620.

 Chronological Listing of Significant Service Events :

950206:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950130, tested positive for cocaine.
950210:  Medical evaluation for alcohol/drug abuse found the Applicant to have early alcohol/drug dependence and recommend VA treatment.
950207:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse as evidenced by your self admission of drug use to the command DAPA.
950208:  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.

950209:  Drug and Alcohol Abuse Report: Cocaine abuse, one to three times per week, ashore off duty. Self referral/disclosure 950207. Physician found Applicant dependent and recommended separation. Commanding Officer recommended separation.
950222:  Commanding Officer recommended discharge with a general (under 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 19950224 with a general (under 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 1-3: 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.

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.

Concerning a change in reenlistment code, 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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation 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 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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 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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