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NAVY | DRB | 2005_Navy | ND0500115
Original file (ND0500115.rtf) Auto-classification: Denied


5420
CORB:003
16 Jun 06

From: Secretarial Review Authority
 To: Naval Discharge Review Board (NDRB)
Via: President, Naval Discharge Review Board

Subj: REQUEST FOR REVIEW: CASE OF , EX-RMSM, USN DOCKET NO.
ND05-00115

Ref: (a) President, NDRB ltr of 26 May 06
         (b) NDRB Decisional Document (Docket No.
ND05-00115) w/Presiding Officer & Dissenting
Opinions
         (c) Mr. (Applicant)l ltr of 13 Jun 06
         (d) SECNAVINST 5420.174D
        
1. I have reviewed subject case as requested by reference (a). It is my determination that the NDRB’s decision to change the reason for discharge to Secretarial Authority and the characterization of service to Honorable (reference (b)) is not supported by the evidence of record (which included reference (c). However, I did determine that the facts of this case warrant equitable relief. Accordingly, per the authority granted me by reference (d), the characterization of service will change to General (Under Honorable Conditions). The reason for discharge will not change and will remain misconduct due to drug abuse.

2. The Board’s decision to change the reason for applicant’s separation is based upon their belief that his drug usage was unknowing and, therefore, did not violate Article 112a of the UCMJ. The evidence presented in support of this proposition was applicant’s own statements and a hand-written note from his relative stating that he provided applicant, without his knowledge, a drug-laced cigarette. This evidence was also presented to and considered by the administrative separation board that found, by a vote of 3-0, applicant had committed misconduct. After reviewing the evidence, and in light of the applicable evidentiary standard, I found that the NDRB’s determination that applicant’s drug use was unknowing is not supported by substantial credible evidence. Specifically, I found the note allegedly written by applicant’s cousin to be insufficient corroboration of applicant’s contention that his drug use was unknowing. Also, the probative value of the
handwritten note is questionable since it appears never to have been properly authenticated prior to its introduction at applicant’s separation proceedings. It also lacks credibility given the author’s relationship to applicant, and his presumed desire not to adversely affect the career of his cousin and friend. Applicant’s own statement denying his knowing use were considered but were also considered insufficient evidence upon which to overturn the decision of the administrative separation board. Therefore, in light of the above, I found that applicant’s use of drugs, as evidenced by his positive urinalysis and the decision of the administrative board, to be knowing, and thus supportive of his administrative separation for misconduct due to drug abuse. Accordingly, the reason for discharge contained on applicant’s DD214 will not change.

3. The NDRB voted to upgrade the characterization of applicant’s discharge to honorable on the basis of equity. Although finding no inequity in the characterization of his discharge at the time of his separation, the Board found that applicant’s post-service warranted a change at this time. I am in agreement with the Board that the evidence of educational achievements, stable employment, community involvement, and lack of post-service criminal conduct, presented by applicant provided strong evidence of his overall good character and served to mitigate his in-service misconduct. However, I did not find this evidence to be sufficiently mitigating to warrant a characterization of honorable given the nature of applicant’s misconduct.

4. The NDRB is responsible for maintaining the integrity of the discharge system to ensure that an honorable discharge is only awarded to those individuals whose conduct is in keeping with the highest traditions of the naval service. Applicant’s service, as evidenced by his misconduct, did not meet that standard, nor does his record of post-service conduct justify the award of such a discharge. In addition to his illegal drug use, applicant was administratively disciplined for a violation of Article 123 of the UCMJ for falsifying an official document. This latter offense was particularly egregious since applicant violated the trust and responsibility placed in him as a Radioman in order to conceal evidence of his own misconduct. In that either of his offenses could have resulted in a punitive discharge, it would undermine the esteem in which an honorable discharge is held, were it to be given to applicant. For this reason, I have determined that, given the significant evidence presented of his post-service rehabilitation, applicant’s discharge should be general under honorable conditions.

5. This case is returned to the President, NDBR, for continued processing. Applicant is reminded that he may petition the Board for Correction of Naval Records for relief if he believes an injustice or error has occurred in the review of his case.



                                                      M. L. CULVER
                                                     





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



ex-RMSN, USNR (TAR)
Docket No. ND05-00115

Applicant’s Request
The application for discharge review was received on 20041020. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060308. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the reason for discharge, and an inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was 4 to 1 that the characterization shall change. Also, the Board voted 3 to 2 that the reason for discharge shall change. The discharge shall be changed to: HONORABLE/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”








PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, submitted at the personal appearance hearing, which supersede issues previously submitted by the DD Form 293, dated 20041001:

“1. Equity. The discharge I received was because of my actions while impaired under the influence of drugs.
2. Equity. At the time of discharge I was immature and did not appreciate the opportunity provided by the Navy.
3. Equity. I was basically a good sailor with recommendations and promotions while in service.
4. Equity. I understand why I discharged from the Navy, but this did not deter my growth or me as an individual. I’ve always thought of possibly coming back into the Navy and redeeming myself. My overall post service conduct should be considered.
5. Equity. I believe that I should receive the benefits that I paid for and earned. I served in the Persian Gulf War and I am still willing to serve my country.

3-8-06
L_E. C_ “ (Applicant’s signature)
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Documentation submitted by the Applicant at the time of the personal appearance hearing:

Letter of Commendation, dtd June 12, 1987, (not signed)
Letter of Commendation, for the period January 4, 1988 to May 2, 1988
Navy “E” Award for Battle Efficiency, for the period October 1, 1986 to May 31, 1988
Letter of Designation as Commercial Traffic Clerk, dtd December 18, 1989
Letter of Authority to Assume the Title and Wear the Uniform of a Petty Officer Second   Class, January 16, 1990
Newspaper article, not dated
Certificate, Plano Rehabilitation Hospital Employee of the Month, dtd June 14, 1995
Letter of Recommendation, dtd September 30, 1998
Letter of Recommendation, dtd May 11, 1999
Naval Education and Training Program Management Support Activity, Results of RM2         Examination, dtd January 2, 1990
Letter of Recommendation, dtd June 22, 2000
Memorandum, Naval Reserve Recruiting Physical Guidelines, dtd October 23, 2001
Request for Reference to Medical Edge Healthcare Group, dtd March 7, 2002
Request for Reference to Mesquite Community Hospital, dtd March 7, 2002
Certificate of Appreciation from Church of Christ at Cedar Valley, dtd January 15, 2006
Masonic Diploma, June 24, 2003

Documentation submitted by the Applicant on March 20, 2006, subsequent to the personal appearance hearing, and included in the Board’s deliberation:

Letter from Applicant and S_B_, dtd March 15, 2006
Advising Report, College/University Transfer, (2 pgs), dtd March 20, 2006
Copy of License and Certificate of Confidential Marriage, dtd July 25, 1987
Letter of Verification of Employment, Mesquite Community Hospital, dtd March 16, 2006
Letter of Verification of Employment, Veterans Administration, dtd March 16, 2006
Document, Nomination to receive a “CIA STAR”, not dated
Letter of Appreciation from Director, Department of Veterans Affairs, dtd March 1, 2006
Drug Test, (2 pgs) dtd December 17, 2004
Letter of Sponsorship for Applicant’s participation in Narcotics Anonymous, not dated
Statement regarding proof of attendance in Narcotics Anonymous Program, not dated
Dallas County District Criminal Court, Felony Record Check 1973- March 2006, dtd March   15, 2006
Dallas County Criminal Court, Misdemeanor Record Search, dtd March 15, 2006 (2 copies)
Copy of Diploma, Oklahoma State Tech, Associate of Technology, January 21, 1983
Letter of Character Reference, March 7, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None  
         Active: None

 Period of Service Under Review :
Date of Enlistment: 870127               Date of Discharge: 900703

 Length of Service (years, months, days):

         Active: 03 02 07 (Does not exclude lost time)
         Inactive: 00 02 29

 Age at Entry: 24                          Years Contracted: 8

 Education Level: 14                        AFQT: 46/38

 Highest Rate: RM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)             Behavior: 3.47 (6)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, AFEM

 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 :

870126:  Applicant signed Drug and Alcohol Abuse Statement of Understanding.

870424:  Applicant to active duty.

870428:  Applicant briefed on Navy's policy of drug and alcohol abuse.
870511:  Drug and Alcohol Abuse Report: from NAVCRUITRACOM GLAKES, IL. Applicant tested positive urinalysis screening accession into recruit training.

890228:  Naval Hospital Jacksonville, FL report of Medical Board. Applicant evaluated for lumbar strain. Applicant was in a motor vehicle accident on 881122, began having neck and back pain several days later. Neurological exam for motor, sensory, and reflexes normal. The results of indicated x-ray studies are as follows: x-rays of lumbosacral spine were reviewed and are normal. He should continue Motrin, 600 milligrams by mouth three times a day as needed. He is to return to the Orthopedic Clinic in two months for re-evaluation, at which time we may return him back to full duty if his symptoms have sufficiently resolved. It is the recommendation of the Board that the member be returned to six months limited duty ashore, within CONUS, in an area with Orthopedic care available at monthly intervals and physical therapy as required, with reevaluation at the end of this time.

900111:  Counseling: Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.

900116:  Counseling: Advised of deficiency (personal behavior, inappropriate dress/appearance and responsibilities), notified of corrective actions and assistance available.

900119:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 900112, tested positive for cocaine.

900125:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 900110, violation of UCMJ, Article 123: Forgery on 900119, to wit: falsely alter last four digits in social security from 9715 to 9745 on Navy Drug Lab Message 192006Z Jan 90.
         Award: Forfeiture of $412 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
900302:  Applicant notified of intended recommendation for administrative discharge by reason of misconduct due to drug abuse as evidenced by a positive urinalysis report for cocaine of 19 January 1990. The characterization of your service may be under other than honorable conditions.
900306:  Medical evaluation for drug and alcohol dependency. Impression: Doubt dependency.

900307:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

900418:  Applicant’s statement to the Administrative Discharge Board.
900426:  An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, and by a vote of 2 to 1 that the misconduct warranted separation, and by unanimous vote recommended discharge under other than honorable conditions.
900604:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900611:  COMNAVMILPERSCOM (CNMPC) message to USS RACINE. CNPC requests current drug dependency status of Applicant. Applicant must be referred to a physician or clinical psychologist for drug dependency determination. Since the determination is a medical procedure, BUMED will not accept CAAC evaluation. Drug/alcohol dependency must be determined subsequent to last incident or within the past six months, whichever is more recent.

900615:  USS RACINE message to CNMPC. The Applicant received a drug and alcohol dependency evaluation by a Medical Officer on 900306. The Applicant was not screened as drug dependent.

900627:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

911212:  NDRB documentary record review Docket Number ND91-01731 conducted. Determination: discharge proper and equitable; relief not warranted.
990422:  BCNR decision, docket 8081-98.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900730 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was improper and inequitable (B and C).

 The Applicant contends that his discharge was improper because he never knowingly used illegal drugs. Applicable regulations permit the upgrade of a discharge on propriety grounds if it can be determined that the discharge is erroneous as a matter of fact, law, procedure, or discretion. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of rebutting this presumption by establishing his claims through a preponderance of the evidence. Moreover, these claims must be established through the presentation of substantial and credible evidence to support his issue. At the time of the discharge, the Applicant submitted evidence to support his contention that he did not wrongfully use a controlled substance. The Applicant submitted a written statement to his Administrative Separation Board, wherein he stated that he smoked a cigarette given to him by his cousin. He further stated that he was not aware that the cigarette was laced with cocaine. The Applicant’s service record contains a copy of a handwritten statement from his cousin who claimed that he gave the Applicant a cigarette laced with cocaine, unbeknownst to the Applicant. In his testimony at the personal appearance discharge review hearing, the Applicant stated that he did not knowingly use controlled substances. Despite the presumption of regularity, the Applicant has established his innocence to the charge of misconduct by reason of drug abuse and is entitled to appropriate relief. The Board voted 3 to 2 that the reason for discharge shall be changed to Secretarial Authority.

The NDRB discovered there was no inequity in the characterization of the Applicant's service at the time of discharge. The Applicant provided evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of a drug free existence, and certification of non-involvement with civil authorities . The Board noted that since discharge, the Applicant has demonstrated a strong commitment to community and excellence. After a careful review of the Applicant's post service documentation, in addition to his official service record and supporting documentation, the Board found that relief is warranted for equity reasons.












Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, 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 V, Para 502, Propriety .

 C. 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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