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NAVY | DRB | 2005_Navy | ND0500136
Original file (ND0500136.rtf) Auto-classification: Denied


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

ex-ITSN, USN
Docket No. ND05-00136

Applicant’s Request
The application for discharge review was received on 20041022. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “miscellaneous/General Reasons”. The Applicant requests a documentary record discharge 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 and reason 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:

 “I strongly believe my discharge was inequitable because it was souly based on an incident with many questionable factors involved as were brought forth in my review board before discharge. Based on my 45 month of service it is very unlikey for me to partake in such events to lead to this type of discharge. Please review characterization of service along with advancement, would very much so enjoy continued service in the military. Currently moving on and would like to use the G.I. bill which I contributed to, to better my future as an Iraqi freedom veteran. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of the Applicant’s DD Form 214
Copy of advertisement from ITT Technical Institute, not dtd

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990921 - 000222  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 000223               Date of Discharge: 031217

 Length of Service (years, months, days):

         Active: 03 09 25
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 55

 Highest Rate: IT3

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, SSDR (2),

Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

030529:  NAVDRUGLAB, JACKSONVILLE, FL, reported Applicant’s urine sample, received 030523, tested positive for cocaine.


030625:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Reduction to next inferior pay grade, restriction and extra duty for 45 days. No indication of appeal in the record.
030701:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
030701:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

030703:  Applicant’s Defense Counsel submitted a Request for Discovery.
031013:  Trial Counsel requested verification of the preparation of lab package and urine specimen form the Navy Drug Screening Lab in Jacksonville, FL.

031015:  Commanding Officer, Navy Drug Screening Lab Jacksonville, FL Summary Report for Laboratory Accession Number. Applicant’s urine sample certified on 030530, contained cocaine metabolites equal to or greater than the Immunoassay standard of 150 ng/ml for each Immunoassay, and that GC-MS confirmed the presence of the single cocaine metabolite, benzoylecgonine, in the urine at a level of 348 ng/ml. This concentration meets the DoD requirement to equal or exceed the GC-MS cut-off standard of 100 ng/ml.

031029:  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 that the misconduct warranted separation. By majority vote the Administrative Discharge Board recommended discharge under other than honorable conditions.

031104:  Applicant’s Defense Counsel submits a Letter of Deficiency.

031105:  Recorder for Administrative Discharge Board responds to Letter of Deficiency submitted by Applicant’s Defense Counsel.

031202:  Commanding Officer, Transient Personnel Unit, Norfolk, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031202:  Commanding Officer, Transient Personnel Unit, Norfolk, advised Commander, Navy Personnel Command (PERS 832) that he directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer, TPU comments (verbatim): ITSN P_ reported to Transient Personnel Unit, Norfolk on 16 November 2003 from USS DEYO (DD 989) for administrative separation processing. During a random urinalysis conducted d on board DEYO, ITSN P_’s urine sample tested positive. He requested and was granted an Administrative Discharge Board. By a unanimous vote the Board found that he did commit Misconduct due to Drug Abuse and recommended that he be separated. ITSN P_’s Defense Counsel submitted a Letter of Deficiency oh his behalf requesting reconsideration of characterization of discharge and/or retention. The Recorder recommended disapproval on the request based on the findings of the Administrative Board. He was well aware of the Navy’s “zero tolerance” drug policy and knowingly violated the same. I considered the Defense Counsel’s argument, but I agreed with the Administrative Board’s recommendation. Accordingly, I separated ITSN P_ from the Navy with a General Discharge on 17 December 2003. “

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031217 with a characterization of general (under 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).

 In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant contends that his discharge was inequitable because there were “many questionable factors involved as were brought forth in my review board before discharge”. The record shows that the Applicant was properly notified and elected to appear before an Administrative Board. There is no evidence of any wrongdoing by the government in the administrative discharge processing. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The Applicant contends that his 45 months of service make it unlikely that he would be involved in the circumstances that led to “this type of discharge.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Again, the Board discovered no impropriety or inequity and therefore considers the Applicant’s discharge to be proper and equitable. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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 NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter. T his issue does not serve as a foundation upon which the Board can grant relief.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The applicant provided one advertisement from a Technical school as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge. Therefore, no relief will be granted.

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 documentation to support any claims of post-service accomplishments or any other evidence related 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), 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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