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NAVY | DRB | 2005_Navy | ND0500303
Original file (ND0500303.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-DA, USN
Docket No. ND05-00303

Applicant’s Request
The application for discharge review was received on 20041210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20050727. 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


Applicant’s issues, as stated on the application:

“To who it may concern, I’m asking you to forgive me. I’m asking for an upgrade so I will be able to use my GI Bill, and be able to use my VA home loan. I played for the GI Bill; they took 1200.00 dollars out my paycheck for my first year of services. I feel I deserve it. I served 36 months with no problems, and then I got scared after September 11, 2001. Today I have my own business, and I have never had a police record. I’m a good young man and all I need is my GI Bill to take more college courses; and my VA home loan so I will be able to buy some property-once again please forgive me, God Bless You and thank you”.

 Applicant provided the following Remarks:

“I believe in GOD, JESUS, and the Holy Sprint. Who ever take this case Please listen to your spirit and forgive me. We all believe in GOD, because GOD Bless America, & In GOD We trust. Have mercy on me. Matthew 7: 1-2 Judge not, that ye be not judged for
With What judgment ye judge, ye shall be judged:
Matthew 5:7 blessed are the merciful for they shall obtain mercy
Proverbs 10:22 the blessing of the LORD, it market rich, and he added no sorrow with it. Proverbs 10:12 Hatred stirred up Strafes: but love coverlet all Sins. If God can forgive, what about you.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’ s DD Form 214 (Member 1) (2 copies)









PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971220 - 980913  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 980914               Date of Discharge: 020621

 Length of Service (years, months, days):

         Active: 03 09 08
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (12 + 9 month extension)

 Education Level: 12                        AFQT: 45

 Highest Rate: DN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (4)              Behavior: 2.3 (4)                 OTA: 2.96

 Military Decorations: None

 Unit/Campaign/Service Awards: NGCM, NDSM, NFMFSR, SSDR

 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 :

020305:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020227, tested positive for THC.

020401:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020327, tested positive for THC.

020410:  Applicant refused to be evaluated by a Medical Officer for drug dependency. Acknowledged understanding that there is no VA Hospital Addiction Treatment available in conjunction with discharge.

020514:  NJP for violation of UCMJ, Article 112a (2 specs):
Specification 1: On or about 020327, wrongfully use of marijuana in or around San Diego, CA.
Specification 2: On or about 020225, wrongfully use of marijuana in or around San Diego, CA.
         Award: Forfeiture of $619.00 pay per month for 2 months, restriction for 30 days (suspended for 6 months), reduction to E-2. No indication of appeal in the record.
         DA W_ (Applicant) did not demand trial by court-martial in lieu of nonjudicial punishment.

020515:  Applicant refused to be evaluated by a Medical Officer for drug dependency. Acknowledged understanding that there is no VA Hospital Addiction Treatment available in conjunction with discharge.
020524:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Commanding Officer’s nonjudicial punishment held on 020514 for violations of the UCMJ, Article 112a (two specifications of wrongful use of marijuana).
020524:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

UNDATED:         Commanding Officer, 1 st Dental Battalion/Naval Dental Center, Camp Pendleton, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “DA W_ (Applicant) tested positive for marijuana during a unit sweep conducted on 25 February 2002 and again during a random test conducted on 25 March 2002. DA W_ (Applicant) tested positive for marijuana for the third time during a random test conducted on 30 April 2002. His nanogram level is 287. DA W_ (Applicant) had no remorse for his actions when he appeared before me for nonjudicial punishment. His passive aggressive attitude is contrary to CMC’s intent and CNO directives. DA W_ (Applicant) has no potential for further useful Naval service. I recommend that he be administratively separated from the Navy with a characterization of service as Other Than Honorable conditions.”
         [First page of the Commanding Officer’s letter is not contained in the Applicant’s service record].

020606:  SJA review determined the case sufficient in law and fact.

020612:  Report of Medical History: History substance abuse (marijuana), had drug course for 1 day 020611 on Naval Hospital Camp Pendleton.

0206xx:  Commanding General, 1 st Force Service Support Group, advised BUPERS, that the Applicant's discharge was directed 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 20020621 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 proper and equitable (B and C).

The Applicant contends he served 36 months without problems. The NDRB advises the Applicant that there is credible evidence in the record that the Applicant used illegal drugs. Certain serious offenses, including drug abuse (use), require mandatory processing for separation for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant's misconduct is documented in his service record, which was marred by:

•         A nonjudicial punishment (NJP) on 020514 for violation of:
o        UCMJ Article 112a (2 specs wrongful use of a controlled substance; marijuana) .
•         Failure of a third random urinalysis on 020430 (not adjudicated).

This misconduct substantiates the reason for his separation as well as his 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. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged. Relief is not warranted.

The Applicant requests the discharge upgrade so he can use his GI Bill. The Applicant contends he is deserving of these benefits based on the Navy taking $1200 from his pay during his enlistment. The Applicant is advised that t he Veterans Administration determines eligibility for post-service benefits not the Naval 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 VA loan or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

In addition, the Applicant contends that an upgrade is warranted based on his post service conduct, as a business owner and upstanding citizen with no post service criminal record. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, evidence of drug free life style, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any documentation for the Board to consider. 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 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), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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 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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