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NAVY | DRB | 2004_Navy | ND04-01251
Original file (ND04-01251.rtf) Auto-classification: Denied


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

ex-QMSN, USN
Docket No. ND04-01251

Applicant’s Request
The application for discharge review was received on 20040806. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter the applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D. C. area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041103. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “I have been employed with various government agencies since my discharge. I was a firm believer in the zero tolerance policy in the Navy however my situation was unique in that I didn’t take the drug. It was placed in a drink by my exwife. Since my discharge I have had no problems at any job as well as local law enforcement with the exception of 1 speeding ticket in Germany. I just want to upgrade to honorable to give me a better chance for a higher “GS” position.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Notification of Personnel Action form
Civilian Evaluation Report (2 pp.)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     791029 – 791030  COG
         Active: USNR              791031 – 821021  HON
                  USN                       821022 - 890308  HON

 Period of Service Under Review :
Date of Enlistment: 890605               Date of Discharge: 910620

 Length of Service (years, months, days):

         Active: 02 00 16
         Inactive: None

 Age at Entry: 27                          Years Contracted: 3

 Education Level: 11                        AFQT: 52

 Highest Rate: QM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.93 (3)    Behavior: 2.93 (3)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (6), GCM, AFEM, HSM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

910325:  NAVDRUGLAB, Oakland, CA reported that Applicant’s urine sample, received 910318, tested positive for cocaine.
910326:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine.
         Award: Forfeiture of $614.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-5. No indication of appeal in the record.
910327:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis.
910327:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910412:  Medical evaluation assessed the Applicant to be alcohol dependent and a drug abuser. Recommended Level III treatment via a VA facility.
910419:  NJP for violation of UCMJ, Article 134: Drunkenness, incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor on 910405.
Award: Restriction for 60 days. No indication of appeal in the record.
910528:  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, by a vote of 2 to 1 that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

910603:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

910617:  Declined treatment at a VA facility for substance dependence.

910613:  BUPERS directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910620 under honorable conditions (general) 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. Drug abuse warranted processing for separation. Separation under these conditions generally results in characterization of service under other than honorable conditions. In addition, the Applicant received NJP for drunkenness and refused treatment for substance dependence. 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.
The Applicant’s discharge characterization accurately reflects his service to his country for the enlistment under review. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, to enhance employment opportunities, or for 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. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. Representation at a personal appearance hearing is recommended but not required.





Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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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