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NAVY | DRB | 2005_Navy | ND0500360
Original file (ND0500360.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-ACAA, USN
Docket No. ND05-00360

Applicant’s Request
The application for discharge review was received on 20041227. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review, a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area or a personal appearance before a traveling panel closest to Dallas, TX . The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing .

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050908. 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.


 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“-fiance broke our engagement
-requested legal counsel, but was denied within time limit
-desire educational benefits
-better job opportunities with upgrade”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference ltr from B_ D_, LT(j.g.) USNR, dtd April 12, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20011213 - 20020219      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20020220             Date of Discharge: 20030430

 Length of Service (years, months, days):

         Active: 01 02 11
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 57

 Highest Rate: ACAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                           Behavior: NA*    OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy “E’ Ribbon, National Defense Service Medal
* Not Available


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

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .
Chronological Listing of Significant Service Events :

020108:  Pre-service waiver for 1 chart “C” (theft) on 011213 granted.

030320:  NJP. No further information found in service record. [Extracted from NAVPERS 1070/604.]

030430:  DD Form 214: Applicant discharged with under other than honorable conditions by reason of misconduct due to drug abuse, authority: MILPERSMAN 1910-146.

*Service Record did not contain the Administrative Discharge package.
*Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030430 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. 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).

The Applicant contends that his problems in the Navy can be attributed to and the commands failure to provide timely legal counsel. The Board applied the presumption of regularity of governmental affairs in this case in the absence of a complete summary of service and discharge package. T he NDRB noted that the Applicant’s service was marred by one nonjudicial punishment proceedings on 20030320. There is no evidence in the record, nor did Applicant present any, that would substantiate his contention that he was denied the right to consult with counsel prior to his nonjudicial hearing. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

The Applicant contends that his disciplinary problems were the result of stress caused by the break up of his engagement. 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 that most members of the Navy 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. Relief denied.

The Applicant states he wants an upgrade to obtain better educational benefits and have better employment opportunities. The 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 employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

For the edification of the Applicant, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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 discharge. Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should be provided to receive consideration for relief, based on post-service conduct. The NDRB reviewed the Character Reference letter provided by the Applicant but the Board determined that this did not 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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