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NAVY | DRB | 2005_Navy | ND0500015
Original file (ND0500015.rtf) Auto-classification: Denied


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




ex-EMFN, USN
Docket No. ND05-00015

Applicant’s Request

The application for discharge review was received on 20040930. 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.


Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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, 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 got out of service and attended college and I have been active in school. I have stayed focused and tried to get my life back on track

I understand I can not change the pass and I am trying to put it behind me and continue with my life.”



Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

None


PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     980930 - 981006  COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 981007               Date of Discharge: 021227

Length of Service (years, months, days):

         Active: 04 02 21
         Inactive: None

Age at Entry: 22                          Years Contracted: 4 (12 months extension)

Education Level: 11                        AFQT: 86

Highest Rate: EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.00 (3)             Behavior: 3.00 (3)                OTA: 3.27

Military Decorations: None

Unit/Campaign/Service Awards: NER (2), GCM, NDSM, AFEM, SSDR (2), NMCOSR (3), LC, ESWS

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 :

020730:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020722, tested positive for cocaine.

020809:  NJP for violation of UCMJ, Article 112a: Wrongfully used cocaine.
Award: Forfeiture of $652 per month for 2 months, restriction and extra duty for 45 days, reduction to EMFN. No indication of appeal in the record.

020816:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

020816:  Applicant advised of rights and having declined to consult with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

020816:  NJP for violation of UCMJ, Article 92 (2 specs):
Specification 1: Fail to have a walking chit in his possession while traveling on base in a restricted status.
Specification 2: Wrongfully being in the NEX without authorization on 020812.

Award: Oral reprimand. No indication of appeal in the record.

020919:  Applicant completed three week Level II outpatient substance abuse treatment.

021107:  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 and misconduct due to the commission of a serious offense, by a vote of 2 to 1 that the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge under other than honorable conditions.

021206:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

021209:  Commander, NTC, Great Lakes 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 20021227 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 received two nonjudicial punishments for illegal drug use and disobedience of orders. 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. Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.
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, or 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 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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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