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NAVY | DRB | 2005_Navy | ND0500457
Original file (ND0500457.rtf) Auto-classification: Denied


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

ex-ATAN, USN
Docket No. ND05-00457

Applicant’s Request
The application for discharge review was received on 20050125. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant designated Congressman Jim Demient, Lindsay Graham and Steve Austin as his representatives on the DD Form 293. In the acknowledgement letter the Applicant was informed that members of Congress do not represent Applicants before the Board. Subsequent to the application, the Applicant obtained representation from the American Legion.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20051102. After a thorough review of all available 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 characterization of the 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:

“NONE Paid into Montgomery Bill, Feel I am entitled to my funds Want to continue my education to Aircraft maintenance at tech school. Need my money I paid in or my Ed. Benefits. I Am still a Veteran!”

Representative submitted no issues.

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1) (3)
Greenville Technical College Unofficial transcript, dtd January 07, 2005
Letter from the Applicant, dtd February 13, 2003
Letter from Applicant, dtd February 21, 2005
         

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19981130 - 19990125      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19990126             Date of Discharge: 20010413

 Length of Service (years, months, days):

         Active: 02 02 18
         Inactive: None

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

 Age at Entry: 21

 Years Contracted: 4
Education Level: 14                                 AFQT: 87

 Highest Rate: AT3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (4)     Behavior: 3.0 (4)                 OTA: 3.43 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Kosovo Campaign Medal with Bronze Star, Sea Service Deployment Ribbon, Armed Forces Service Ribbon


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 :

981130:  Applicant briefed on U. S. Navy’s illegal drug policy.

010322:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance (THC).
         Award: Forfeiture of $711.90 per month for 2 months, reduction to E-3. No indication of appeal in the record.

010322:  Report of Medical Examination. Purpose for examination: Separation/retirement PE.

010413:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse.

 Service record was missing elements of the summary of service and did not contain the administrative discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010413 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance outweigh the positive aspects of the member's military record. 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 was subject to a nonjudicial punishment (NJP) for a violation of UCMJ Article 112a (wrongful use of a controlled substance) and found guilty of the offense thus substantiating the misconduct for which he was discharged. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service of under other than honorable conditions. Relief denied.

The Applicant contends that he was not responsible for his behavior because he learned of his wife’s infidelity while on deployment and he should have been offered mental and substance abuse counseling rather than be discharged. It must be noted that most Sailors serve honorably even when confronted with similar issues and therefore earn honorable discharges. In fairness to those Sailors and Marines, commanders and separation authorities are tasked to ensure that undeserving servicemen and women receive no higher characterization than is due. When reviewing a discharge, the NDRB does consider the mental state of the Applicant and how that might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. Nevertheless, the Applicant bears the burden of presenting substantial and credible evidence to support his issues. There is no evidence in the record, nor has the Applicant produced evidence, to support his contention of severe depression. The NDRB does not consider the Applicant’s statement and the implied lack of medical treatment given the Applicant to be sufficient to serve as a basis to mitigate the Applicant’s misconduct. Relief not warranted.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based 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, housing, medical or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant’s issue is without merit. Relief denied.

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 credible evidence of a substance free lifestyle, proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided an unofficial transcript as documentation of his post service conduct. Based on insufficient evidence and lack of sufficient post service factors, relief denied.

In the absence of a complete service record and administrative discharge package, the Board presumed regularity of governmental affairs. The Board presumed that the Applicant’s discharge was conducted in accordance with that described in reference “A”. If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.
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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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