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NAVY | DRB | 2004_Navy | ND04-01276
Original file (ND04-01276.rtf) Auto-classification: Denied


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

ex-DCFN, USN
Docket No. ND04-01276

Applicant’s Request
The application for discharge review was received on 20040813. 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 the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050107. 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 – 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 wish the Board would consider my service time spend and consider my ribbons earned while doing my service to this great country
The one mistake I made was a foolish dicision fueled by alcohol.

I’ve grown since then and regret what happened

All I really want is my medical benefits

This is my only incident in my 41 months of service Sincerely

[signed Applicant]”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881130 - 890327  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890328               Date of Discharge: 920915

 Length of Service (years, months, days):

         Active: 03 05 19
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

 Education Level: 12                        AFQT: 43

 Highest Rate: DC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.24 (5)             Behavior: 3.20 (5)                OTA: 3.64

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (2), SASM (2)

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

891019:  Retention Warning: Advised of deficiency (failure to attend minimum number of flying squad sessions), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910225:  Retention Warning: Advised of deficiency (disrespect to a senior officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

910612:  Retention Warning: Advised of deficiency (failure to perform PMS on AFFF Station 2), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

911226:  Counseling: Advised of deficiency (Conduct Ashore).

920708:  NAVDRUGLAB, NORFOLK, reported Applicant’s urine sample, received 920619, tested positive for [cocaine].

920716:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine. Award: Forfeiture of $501.90 per month for 2 month(s), restriction and extra duty for 60 days, reduction to E-3. No indication of appeal in the record.

920721:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by all drug incidents in your current enlistment. Advised if discharge approved, the characterization of service may be under other than honorable conditions.
920721:  Applicant advised of rights and having consulted 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.

920724:  Substance Abuse/Dependency Screening:
         History: Marijuana
                  Three previous ETOH incidents
         Assessment:      Substance Abuse
          Plan:    VA inpatient treatment not indicated if administratively separated.
920807:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920901:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920915 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. The Applicant states his discharge was based on one incident in “41 months of service” and requests the board consider his “ribbons earned.” 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. 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.

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. 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 nonjudicial punishment proceedings for a violation of Article 112a of the UCMJ in addition to four other counseling or retention warnings. 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 Applicant contends that his drug use in the Navy can be attributed to a decision “fueled by alcohol.” While he may feel that his abuse of alcohol was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either 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 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 any documentation for the Board to consider. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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), effective 15 Aug 91 until 04 Mar 93, 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 502, Propriety.


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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