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NAVY | DRB | 2004_Navy | ND04-01227
Original file (ND04-01227.rtf) Auto-classification: Denied


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

ex-DKSN, USNR
Docket No. ND04-01227

Applicant’s Request
The application for discharge review was received on 20040728. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20050322. After a thorough review of the available 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 12 years 7 months with no other adverse action.

I also served in the U.S. Army Active Duty for 3 years 05 months and 26 days. I was honorably discharged.

I served my country proudly and was a top notch sailor and disbursing clerk. I made a stupid decision to try drugs and tested positive on urynalis test. I grieve still yet in that I embarrassed the Navy and myself, lost my family and my career and my pride. My discharge status has haunted me for 6 years.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Travel certificate, separation without orders, dated November 10, 1998
Applicant’s United States Army-RA DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USA                        790322 - 820917  HON
         Inactive: USNR-R                  851230 - 860407  COG
         Active: USNR              860408 - 900404  HON
                  USNR             900405 - 940126  HON

 Period of Service Under Review :
Date of Enlistment: 940127               Date of Discharge: 981112

 Length of Service (years, months, days):

         Active: 04 09 16                  (Does not exclude lost time)
         Inactive: None

 Age at Entry: 35                          Years Contracted: 4 (with extensions)*

 Education Level: 11 GED           AFQT: 86

 Highest Rate: DK1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)    Behavior: 4.00 (3)                OTA: 4.00 (4.0 evals)
 Performance: 3.75 (4)    Behavior: 2.50 (4)                OTA: 2.57 (5.0 evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: N&MCAM (3), GCM (3), NER, NDSM, HSM, USCGMUC, USCGSOSR, NRSSR

 Days of Unauthorized Absence: None

*Length of extensions not available in service record

 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 :

940127:  Applicant enlisted for 4 years.

980127:  Applicant’s enlistment extended.

980627:  Applicant’s enlistment extended.

 980908:  NJP. No further information found in service record. [Extracted from NAVPERS 1070/604.]

980915:  Applicant to Naval Hospital, Addictions Rehabilitation Clinic (ARC). Diagnoses: AXIS I: Alcohol dependence with physiological dependence. AXIS II: None. AXIS III: Hypertipidemia.

9810xx:  Applicant discharged from Alcohol Rehabilitation Center, Jacksonville, FL. where he was being treated for his addiction. [Extracted from Staff Psychiatrist history dtd 981112.]

981029:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation. Article 134: Obtain services under false pretenses.
         Award: Reduction to E-4. No indication of appeal in the record.
981107:  Applicant transferred to Naval Hospital Jacksonville, FL from Baptist Medical Center following cocaine intoxication.
981109:  NJP for violation of UCMJ, Article 86: Absence from unit, organization or place of duty, violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: cocaine.
         Date of Offense: 980805-980808.
         Award: Reduction to E-3. No indication of appeal in the record.
981112:  Narrative Summary from Naval Hospital, Jacksonville, FL: Diagnostic Impression: AXIS I: Cocaine dependence. AXIS II: Cluster B personality traits R/O disorder. AXIS III: History of coronary artery disease. History of cerebral artery disease. History of hypertension. History of hypercholesterolemia. Applicant expected to be administratively separated on 981112 he will not receive follow up through the Navy. However, he should seek treatment through civilian sources. Applicant discharged.
981112:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use), authority: NAVMILPERSMAN, Article 1910-146.

 Applicant’s discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19981112 under other than honorable conditions by reason of misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1. The Applicant states his discharge was inequitable because it was based on one isolated incident in “12 years 7 months with no other adverse action.” 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 nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. 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 consider his discharge proper and equitable. 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. The Applicant’s service was marred by three nonjudicial punishment proceedings for violations of Articles 86, 92, 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 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 any 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 V, Para 502, Propriety .

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


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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