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NAVY | DRB | 2004_Navy | ND04-01280
Original file (ND04-01280.rtf) Auto-classification: Denied


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



ex-BTFA, USN
Docket No. ND04-01280

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 general (under honorable conditions). 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. Applicant did not respond.

Decision

A documentary 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 did 3 years 10 months in the U.S. Navy . I received several accommodation certificates while in active duty but due to a drug problem that I had I ended up getting discharge with a OTH. I truly feel within my heart & soul that I served my country with Honor thus deserving at least a General Discharge under Honorable Conditions. I’m currently residing at the Vietnam Veterans of San Diego Facility. I’ve completed a drug program and I am now working towards getting certified as a drug & alcohol counselor.”

 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)     850821 - 851006  COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 851007               Date of Discharge: 890825

 Length of Service (years, months, days):
         Active: 03 10 19         Does not exclude lost time
          Inactive: None
Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 44
Highest Rate: BT3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.44 (5)    Behavior: 3.32 (5)                OTA: 3.60

 Military Decorations: None
Unit/Campaign/Service Awards: NER, SSDR, AFEM

 Days of Unauthorized Absence: 15
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 :

851008:  Applicant briefed on Navy's policy of drug and alcohol abuse.
851028:  Retention Warning: Advised of deficiency (Violation of UCMJ, Navy rules and regulations, demotivated, negative attitude, improper conduct/behavior), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
860924   Applicant to unauthorized absence 0515, 860924.

 860929:  Applicant missed ship’s movement.
861006:  Applicant from unauthorized absence 0615, 861005 (12 days/surrendered).
861023:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.
881026:  Retention Warning: Advised of deficiency (Behavior towards military responsibilities. Tardiness, unauthorized absence and lack of concern for others in Division and work center.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
881117:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Restriction and extra duty for 30 days, reduction to E-3. No indication of appeal in the record.
890313   Applicant to unauthorized absence 0630, 890313.
890316:  Applicant from unauthorized absence 0650, 890316 (3 days/surrendered).

 890323:  NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 112A: Wrongful use of cocaine.
         Award: Forfeiture of $392 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Forfeiture suspended for 6 months. No indication of appeal in the record.
890410:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense and misconduct due to drug abuse.
890424:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not drug dependent.

890428:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
890503:  Drug and Alcohol Abuse Report: Cocaine abuse, ashore off duty. Random urinalysis 890227. Physician found Applicant not dependent and recommended Level I. Commanding Officer recommended separation. Comments: Limited potential for future naval service.
890628:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions and by a vote of 2 to 1 that the discharge be executed immediately.

890714:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense and misconduct due to drug abuse.
890816:  CNMPC directed the Applicant's discharge under other than 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 19890825 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: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends that he served the United States well and he is entitled to an upgrade. 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. T he Applicant’s service was marred by nonjudicial punishment proceedings on three occasions for violations of UCMJ Article 86, unauthorized absence, and Article 112a, wrongful use of cocaine. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. While the Board is sympathetic to the Applicant’s drug problems, t he 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 is not warranted.
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. The Applicant has not provided any documentation for the Board to consider. Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)
A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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