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NAVY | DRB | 2005_Navy | ND0500562
Original file (ND0500562.rtf) Auto-classification: Denied


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

ex-AME3, USN
Docket No. ND05-00562

Applicant’s Request
The application for discharge review was received on 20050214. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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

Issues, as stated

Applicant’s issues, as stated on the application:

1. “This request is made so that I can find jobs and be eligible for VA Medical, home loan, voc rehab, benefits. This discharge has been a hindrance in my ability to provide adequately for my family and myself also; it really isn’t so much about the benefits. I did six plus very honorable years in service. All I ask is for an opportunity to be a productive citizen. Right now I can’t find a job for 2 reasons
1) Character of my discharge
2) No one seems to need the skills I learned from military training”

 Applicant’s Remarks:
“I have learned from the poor choice of the past. I hope to work my way beyond this and I request the opportunity to engage in a productive life

I should add that there some jobs out there but at today’s cost of living, $7.50 an hour simply does not cut it. I need alternative training. Actually I need help, I do not know how to operate outside of the military. I did not get a Taps class. Actually I got nothing. I know I messed up bad. Please do what you can. Thank you”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     980407 - 980601  COG
         Active: USN                        980602 - 020503  HON

 Period of Service Under Review :
Date of Enlistment: 020504               Date of Discharge: 040827

 Length of Service (years, months, days):

         Active: 02 03 24
         Inactive: None

 Age at Entry: 25                          Years Contracted: 6

 Education Level: 12                        AFQT: 90

 Highest Rate: AME2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)             Behavior: 2.00 (4)                OTA: 2.89

 Military Decorations: None

 Unit/Campaign/Service Awards: NAM, CGUC, NER, GCM, NDSM, AFEM, 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 :

030313:  NJP for violation of UCMJ, Article 92: Dereliction of duty (failed to stay awake on watch at hanger 201), violation of UCMJ, Article 103: Misbehavior of sentinel or lookout.
         Award: Extra duty for 15 days, reduction to E-4. Suspended for 6 months. No indication of appeal in the record.
040713:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040709, tested positive for THC.

040720:  Drug and Alcohol Abuse Report: Marijuana abuse 040709, ashore off duty. Commanding Officer recommended processing for separation. Command level rehabilitation recommended. Comments: This is a Zero Tolerance case, pure and simple.

040727:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: SNM wrongfully used marijuana, a schedule 1 controlled substance, on or about 6 July 2004 while on active duty in the United States Navy.
         Award: Forfeiture of $946 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
040727:  DAPA screen: Summary of Review: Member tested positive for THC (marijuana) on 9 July 04. On 4/96 was arrested for possession of marijuana and case was dismissed in N.Y. Member has documented evidence showing he has used marijuana previously. SARP PAX RIVER will be notified if member wants treatment after initial screen if recommended.
Other comments:
Civil action pending: Applicant charged with assault, court date pending.
000000:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000000:  Applicant advised of rights and having elected not to consult [or] having consulted 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.
000000:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): [if appropriate]:

040812:  Commandant, Naval District Washington directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

 Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040827 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

The Applicant contends he “did six plus very honorable years in service.” 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. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in 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. Relief denied.

An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 92, 103 and 112a 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 is 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 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.

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, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any relevant 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. 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 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 .
D. 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.

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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