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NAVY | DRB | 2004_Navy | ND04-01342
Original file (ND04-01342.rtf) Auto-classification: Denied


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

ex-EM2, USN
Docket No. ND04-01342

Applicant’s Request
The application for discharge review was received on 20040823. 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 listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041221. 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: GENERAL (UNDER 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. “I have corrected the problems I had while on active duty. I will graduate from Jacksonville Community College on July 23, 2004 with AA in Arts. I desire to use my knowledge and experience for the benefit of the Military. I Respectfully desire that I be given a second chance to benefit the Military’s Goal and my career.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2. “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in her request for a discharge upgrade of his current General Under Honorable Conditions to that of Honorable.
The FSM served on active service from July 10, 1990 to July 19, 2002 at which time he was discharged due to Misconduct. Prior to, the FSM served honorably from May 29, 1987 to July 9, 1990.

Although the FSM makes no specific issues upon this application, we believe he is seeking equitable relief based on the character of his first period of serve and his post-service, as he submits character reference letters in support for the Boards review.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’ s DD Form 214
Character reference letter, dated August 11, 2004
Package from Department of Veterans Affairs
Character reference letter, dated August 2, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870529 - 870802  COG
         Active: USN                        870803 - 900709  HON
                                             900710 – 960709  HON
                                             960710 – 990225  HON
                                             990226 – 001130  HON

 Period of Service Under Review :
Date of Enlistment: 001201               Date of Discharge: 020719

 Length of Service (years, months, days):

         Active: 01 07 18
         Inactive: None

 Age at Entry: 39                          Years Contracted: 3

Education Level: 12                        AFQT: 28

 Highest Rate: EM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (5)             Behavior: 3.00 (5)                OTA: 3.52

 Military Decorations: GCM(3)

Unit/Campaign/Service Awards: AFSM, AFEM, NDSM(2), OSR(3), SSDR

 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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

001201:          Applicant reenlisted for three years.

010514:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010504, tested positive for THC.

011018:  Special Court Martial
         Charge I: Violation of the UCMJ, Article 112a, (1) Specification.
         Specification 1: Wrongful use of marijuana on 010430.
         Findings: To Charge I and specification 1 thereunder, guilty.
         Sentence: Confinement for 21 days, reduction to E-5.
         CA 011018: Sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.

020117:  Applicant advised of rights and having consulted with counsel certified under UCMJ, Article 27(b), elected to appear before an Administrative Discharge Board.
020508:  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, that the Applicant be retained.

020524:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

020602:  CNMPC recommended to the Assistant Secretary of the Navy that the Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to drug abuse.

020708:  CNMPC directed the Applicant's discharge 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 20020719 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 following is provided for the edification of the Applicant. 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 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, certification of non-involvement with civil authorities, and a drug free lifestyle. The Applicant’s evidence of post-service conduct was found not to mitigate his misconduct sufficient to warrant an upgrade to his discharge.

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. A general (under 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. 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 even though it may be a one-time use. 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 Board has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

Issue 2: Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief not warranted.

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 additional documentation to support any claims of post-service accomplishments or any other evidence relating 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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 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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