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NAVY | DRB | 2005_Navy | ND0500223
Original file (ND0500223.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND05-00223

Applicant’s Request
The application for discharge review was received on 20041117. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant did not list a representative on his DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201. 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. “Upgrade is requested in order to pursue higher educational benefits. I have changed my life around and wish to pursue a college degree.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990608 - 990727  COG
         Active:                            None                       HON

 Period of Service Under Review :
Date of Enlistment: 990728               Date of Discharge: 001117

 Length of Service (years, months, days):

         Active: 01 03 20 (does not exclude lost time)
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 months extension)

 Education Level: (Can’t Verify)  AFQT: 55

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF**                Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM

 Days of Unauthorized Absence: 64

 **No marks found in Applicant’s service record.
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 :

001018:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 001012, tested positive for THC.


001023:  NJP for violation of UCMJ, Article 86(1 Spec): Unauthorized Absence.
 Specification 1: In that AN D_ M_ M_, (Applicant) USN, USS BONHOMME RICHARD (LHD 6), on active duty, did, on or about 0700, August 08, 2000, without authority, absent himself from his unit, to wit: USS BONHOMME RICHARD (LHD 6), located at Naval Station San Diego, CA, and did remain so absent until on or about October 11, 2000, Violation of UCMJ, Article 112A (1 Spec): Wrongful use of a controlled substance. Specification 1: In that AN D_ M_ M_, (Applicant) USN, USS BONHOMME RICHARD (LHD 6), on active duty, did, on board USS BONHOMME RICHARD located at Naval Station San Diego, CA on or about October 12, 2000, wrongfully use of marijuana, a controlled substance.
         Award: Forfeiture of $563.00 per month for 2 months, restriction for 60 days, reduction to E-2. No indication of appeal in the record.
001025:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
001025:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
001027:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments (verbatim): I have carefully reviewed the evidence contained in enclosures (2) (Report and Disposition of Offense(s) of 23OCT00) and (3) (Complete Lab results of Applicant of 00OCT). It is very clear that AA M_ (Applicant) is unsuitable for further military service due to his drug abuse use. AA M_ (Applicant) has exhibited total disregard for the Navy’s zero tolerance drug abuse policy by engaging in the unlawful use of marijuana. As result, member is unable to function in the trusted capacity as a sailor due to his drug abuse. As his behavior is a hindrance to good order and discipline, I strongly recommend that AA M_ (Applicant) be immediately separated from the naval service with an Other Than Honorable Discharge.

001103:  COMPHIBGRU THREE 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 20001117 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 Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB). There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. This issue does not serve to provide a foundation upon which the Board can grant relief.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. For the Applicant’s edification, sailors guilty of illegal drug use normally receive a discharge characterization of under other than honorable conditions. T he Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use and unauthorized absence, substantiating his misconduct . It must be noted that most sailors serve honorably; thereby, earning their honorable discharges. In fairness to those sailors, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. An upgrade to honorable would be inappropriate. Relief denied.
 
 T here 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. The NDRB is authorized to consider outstanding 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. 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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided any documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.
 
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 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 27, effective 27 March 2000 - 11 Feb 2001, 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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