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NAVY | DRB | 2005_Navy | ND0500592
Original file (ND0500592.rtf) Auto-classification: Denied


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

ex-EW3, USN
Docket No. ND05-00592

Applicant’s Request
The application for discharge review was received on 20050216. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions and the reason for the discharge be changed to “Admin. Discharge”. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050608. 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 - 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. “Recv’d E4-E3 downgrade due to failed urinalysis. The reason I was discharged was because I exercised my right to waive my admin board for reassignment – not because of failed urinalysis. Respectfully request general discharge upgrade. My records show 4.0 conduct & many achievements while commissioning USS CHOSIN CG 65 we were stationed in San Diego. I was a new EW2, LPO for Electronic Warfare Division OPS Dept. I was class leader & high achiever w/honors at the Navy advances electronics school for EW’s at Corey Station in Pensacola, FL. I also served for 19 mos on USS TRUXTUN CGN-35. Never in my whole time in the Navy was I less than 4.0! On leave for 30 days before reporting to San Diego in Jan 1990 - I was inadvertently exposed to THC. With only a year & a half left on active duty & facing humility of shipmates, I researched legal options and choose to waive an admin board for immediate discharge under general conditions. Therefore discharged due to administrative reasons only.”

Applicant’s Remarks: “Respectfully request General Discharge under Honorable Conditions. Thanks!”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None were submitted.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     860514 - 861221  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 861222               Date of Discharge: 900525

 Length of Service (years, months, days):

         Active: 03 05 04
         Inactive: None

 Age at Entry: 25                          Years Contracted: 4 (24 months extension)

 Education Level: 14                        AFQT: 94

 Highest Rate: EW2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.72 (5)             Behavior: 3.76 (5)                OTA: 3.76

 Military Decorations: None
Unit/Campaign/Service Awards: SSDR, AFEM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :
900303:  Applicant transfers from NTTC Pensacola.

900403:  Applicant reports to PCD Chasin (CG-65).
900426:  NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substance on 900404.
         Award: Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.
900501:  Applicant notified of intended recommendation for administrative discharge by reason of misconduct due to drug abuse. If the separation is approved, the characterization of service may be under other than honorable conditions.
900501:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
900507:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, and psychological drug dependent. Recommend VA treatment for dependence, if requested by the Applicant.

900510:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900518:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

900520:  Applicant discharged.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19900525 under other than 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: 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 of duty outweigh the positive aspects of the member's military record. T he Applicant’s service was marred by a nonjudicial punishment proceeding for violation of Article 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.

In accordance with NAVMILPERSMAN the narrative reason of “Misconduct – Drug Abuse (Use) is proper. T he summary of service clearly documents that misconduct due to drug abuse was the appropriate reason for the Applicant’s discharge. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. The Applicant is advised that regulations do not provide for a reason for discharge of “administrative discharge.” The Applicant’s issue is without merit. Relief Denied.

The Applicant argues that he waived his administrative board in the expectation he would be reassigned, he expected a general characterization and that the separation was based on one isolated incident. The Board found no indication in the record that the Applicant was offered reassignment or a general characterization. To the contrary the applicant was properly notified of his administrative discharge for drug abuse, stating the least favorable characterization of service possible as under other than honorable conditions. The Applicant’s allegations do not refute the presumption of regularity in this case. 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 of under other than honorable conditions. There is credible evidence in the record that the Applicant used illegal drugs. The Applicant’s service record is marred by an award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. 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. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.
Normally, to permit relief, an 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 have been 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. As of this time, the Applicant has not provided documentation for the Board to consider.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided a personal appearance hearing for this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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 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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