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NAVY | DRB | 2005_Navy | ND0500556
Original file (ND0500556.rtf) Auto-classification: Denied


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

ex-OS3, USN
Docket No. ND05-00556

Applicant’s Request
The application for discharge review was received on 20050208. 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 20050602. 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: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. "I have been out of the navy for 13 yrs, with a great record. I serve in my community church. I work for a Christian Drug & Alcohol program called Teen Challenge for 7 yrs helping others overcome Drug & Alcohol. I interact with my church in many ways. To serve others who are in need. I love to help others and I made a mistake back when I was in the Navy. I think I deserve an upgrade. I changed my life and I live for the Lord now. I make good decisions, which I did not make before."
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Reference Letter from Director of Student Services, Teen Challenge Training Center,
dated January 7, 2005
Certificate of Completion, Organizational Leadership Training Seminar from 12 to 16
June 2004, Teen Challenge Training Center
Letter of Congratulations on being named Staff of the Week, dated September 18, 2000
Certificate of Completion, Reading Instructor, Teen Challenge Training Center, dated
April 24, 1998
Certificate of Recognition, Staff of the Month, Teen Challenge Training Center, dated
April 2004
Letter of Congratulations, Staff of the Week, Teen Challenge Training Center, dated
 September 10, 2001
 Letters of Commendation (in-service) (2)
Enlisted Performance Evaluation Report for period ending March 31, 1992 (front page)
Petty Officer Second Class Title Authorization Letter dated July 23, 1991
Letter of Appreciation dated November 27, 1991

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860113 - 860127  COG
         Active: USN                        860128 - 891116  HON

 Period of Service Under Review :
Date of Enlistment: 891117               Date of Discharge: 921016

 Length of Service (years, months, days):

         Active: 02 11 00
         Inactive: None

 Age at Entry: 31                          Years Contracted: 6

 Education Level: 12                        AFQT: 40

 Highest Rate: OS2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (5)             Behavior: 3.84 (5)                OTA: 3.84

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR(2), BATTLE”E”, CGSOSR, AFEM, NDSM, SASM, NUC, GCM, JMUA

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

891117:  Reenlisted on board USS DULUTH (LPD 6) for 6 years.

 900202:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (cocaine). Award: Forfeiture of $270.00 pay per month for 1 month, reduction to E-3. No indication of appeal in the record.
900206:  Retention Warning: Advised of deficiency [Failure to conform conduct to acceptable Naval standards by wrongful use of cocaine. This unacceptable conduct resulted in the Applicant's appearance at Officer-in-Charge non-judicial punishment (NJP).] Notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
910118:  NJP for violation of UCMJ, Article 86: UA. Award: Reduction to E-3 (suspended for 3 months). No indication of appeal in the record.

920506:  NAVDRUGLAB, San Diego, CA reported Applicant’s urine sample, received 920430, tested positive for cocaine.

920515:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (cocaine). Award: Restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
920520:  Applicant notified of intended recommendation for discharge with the least favorable characterization being other than honorable conditions by reasons of misconduct due to a pattern of misconduct and misconduct due to drug abuse as evidenced by statements in your service record.
920529:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, objected to the separation and elected to appear before an Administrative Discharge Board.
920729:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge with a characterization of general (under honorable conditions).
920827:  Medical Officer evaluation for drug abuse indicates no evidenced of dependency.
920917:  Commanding Officer, USS REASONER (FF 1063) recommended discharge with a characterization of general (under honorable conditions) by reason of misconduct due to drug abuse (use). The factual basis is the Applicant's NJP convictions on 900206 and 920515 for violations of UCMJ Article 112a Drug Abuse (use).

921013:  BUPERS directed the Applicant's discharge with a characterization of general (under honorable conditions) by reason of misconduct due to drug abuse (use).
921015:  Page 13 Entry: Applicant certified that he refused VA treatment for drug
dependency prior to, or subsequent to, separation from active duty.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921016 with a 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).

Issue 1: The Board reviewed the post-service documentation provided by the Applicant and recognizes the efforts he has made since his separation from the Naval Service. The Applicant is advised, however, that there is no law or regulation, which provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving 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. The Applicant has provided documentation of his community service but could also have provided other examples of post-service conduct, to include proof of educational pursuits, verifiable employment records, credible evidence of a substance-free lifestyle, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief on this basis cannot be provided at this time.

Additionally, the Board reviewed the Applicant's records, to include the record of his separation proceedings, to determine if his discharge was proper and equitable. 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 but saw credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for Sailors who abuse illegal drugs with separation under these conditions generally resulting in a characterization of service under other than honorable conditions. In the Applicant's case, a general discharge was awarded because significant negative aspects of a member's conduct outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by a retention warning on 900206 and two nonjudicial punishment (NJP) proceedings for violations of Articles 86 and 112a (2 total specifications) of the UCMJ. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief on this basis is 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. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 502, Propriety .

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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