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NAVY | DRB | 2005_Navy | ND0500061
Original file (ND0500061.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00061

Applicant’s Request
The application for discharge review was received on 20041004. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

 Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20051012. 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 4 to 1 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

Issues submitted by Applicant and counsel/representative (American Legion ):
“ 1. (Equity Issue) This former member opines that youth and immaturity contributed to and extenuated his misconduct of record.

2. (Equity Issue) This former member further requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application. ”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Enrollment, Central Carolina Community College, dated September 26, 2005
Character Reference Letter from E_ B_ M_, Pastor, undated
Character Reference Letter from SGT. R_ W. R_, Dunn PAL Director, dated October 13, 2005
Permanent Student Record, Central Carolina Community College, dated January 26, 2005
Criminal Record Search, dated October 13, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19970807 - 19970921               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970922             Date of Discharge: 19980902

 Length of Service (years, months, days):

         Active: 00 11 11
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    None
         Confinement:                       None

 Age at Entry: 18

 Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 41

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00(1)              Behavior: 1.00 (1)                OTA: 2.67

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): 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 :

980722:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $463.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.

980902:  DD Form 214 issued: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority: NAVMILPERSMAN, Article 1910-146.

040408:  NDRB documentary record review Docket Number ND03-00923 conducted. Determination: discharge proper and equitable; relief not warranted.

 The Service Record was missing the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980902 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

There is credible evidence in the record that the Applicant used illegal drugs. The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use. Additionally, the Applicant testified that he used marijuana while on active duty in the United States Navy. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. 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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. Relief denied.

The Applicant, through his representative, contends that his discharge was inequitable because of his youth and immaturity at the time of service. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted most servicemembers begin their service at a relatively young age. It must further be noted that despite their relative youth and immaturity, the vast majority of these members of the Navy still serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. 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 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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Board received and considered all of the Applicant’s submissions and commendable post service conduct, including his letters of reference, volunteer work with the Dunn, NC Police Athletic League and his local church, employment at Wal-Mart, educational achievements at Central Carolina Community College, and criminal records check. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

The following if provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, 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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