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NAVY | DRB | 2005_Navy | ND0500744
Original file (ND0500744.rtf) Auto-classification: Denied


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

ex-BU3, USN
Docket No. ND05-00744

Applicant’s Request
The application for discharge review was received on 20050330. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requested a documentary discharge review and did not designate a representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation from the American Legion.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060209. 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


 Applicant’s issues, as stated in the attached document:

“I would like to appeal the decision of my discharge status, changing it to a General Discharge or Honorable if possible. This change would allow me to utilize the monies I contributed to the GI bill while on active duty. Over the past five years I have made positive changes in my life, including completion of a Drug and Alcohol Rehabilitation program, Certification in Heating, Ventilation, Air Conditioning and Refrigeration and passing the RSES Certification. My future endeavors in a career in Heating, Ventilation and Air Conditioning has been a long time goal of mine is contingent on my discharge status change.

The occurrence that lead to my last days in the U.S. Navy and discharge have been identified, recognized, resolved and new goals set. My career in the Navy gave me experiences and knowledge that I would like to put to good use. The change in my discharge status will have a positive impact in the pursuance of future goals and the rest of my life. I have enclosed additional documentation to prove the dedication I have towards improving myself.”

 The Applicant’s representative submitted no issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Character reference letter from L_ D. R_, Former General Manager, Buckner Brewing Company, Register Nurse, dated February 16, 2005 (2 copies)
Character reference letter from Project Manager, Hushpuppy Bar and Grill, dated February 20, 2005 (2 copies)
Character reference letter from M_ K. S_, Brewer and Co-owner of Buckner Brewing Company, dated March 17, 2005 (2 copies)
Test results of RSES Proper Refrigerant Usage, dated May 11, 2004 (2 copies)
Certificate of completion, “Fundamentals of Electricity and Electronics”, dated November 11, 2004 (2 copies)
Certificate of completion, “Heating, Ventilation, Air Conditioning and Refrigeration”, dated May 11, 2004 (2 copies)
Certificate of completion, “Alcohol and Drug Studies Program”, dated July 19, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19941221 - 19950327      COG
         Active: USN                        19950328 - 19990930      HON

 Period of Service Under Review :
Date of Enlistment: 19991001             Date of Discharge: 19991221

 Length of Service (years, months, days):

         Active: 00 02 20                  (Total Active Duty: 04 08 24)
         Inactive: None

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

 Age at Entry: 24

 Years Contracted: 3

 Education Level: 12                                 AFQT: 57

 Highest Rate: BU3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB                           Behavior: 1.0 (1)                 OTA: 1 .00 (1)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Good Conduct Medal, Sea Service Deployment Ribbon (4), Humanitarian Service Medal, Navy Rifle Marksmanship Ribbon, Navy Pistol Marksmanship 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 :

991001:  Reenlisted this date for a term of 3 years.
991216:  Applicant acknowledged receipt of notice of intended administrative discharge.
991216:  Commanding Officer, U.S. Naval Mobile Construction Battalion SEVENTY-FOUR, recommended to Commander of Naval Education and Training the discharge of BU3 J_ (Applicant) under other than honorable conditions by reason of commission of a serious offense and misconduct due to drug abuse. Commanding Officer’s comments: “This command supports the investigation coordinated between NCIS and the local Gulfport Police Department. On 06 December 1999, BU3 J_ (Applicant) was advised of his rights and was questioned by the Gulfport Police Department; he fully admitted his involvement in the selling of illegal drugs to an undercover police officer. Arrest warrants will be prepared and served at a future time which have not been yet determined. Due to the overwhelming preponderance of evidence and per the Navy’s Zero Tolerance policy, BU3 J_ (Applicant) is recommended for immediate separation from the Naval service with an Other Than Honorable characterization of service.”

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19991221 by reason of misconduct due to drug abuse (A and B) 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 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 outweigh the positive aspects of the member's military record. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from naval service. Furthermore, processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged. The Applicant’s service record documented his admission of guilt to the charge of selling illegal drugs to an undercover police officer. 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. Separations under these conditions generally result in an under other than honorable conditions characterization of service. The Board could discern no inequity or impropriety. Relief denied.

 The Applicant requests an upgrade on order to utilize the G.I. Bill. For the edification of the Applicant, 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 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 is not warranted.

 The Applicant contends that he has made positive changes in his life since his discharge. There is no law or regulation, which provides that an unfavorable discharge may be upgraded based 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 evidence of a drug free life, educational documents, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided three character reference letters, three HAVAC related course completion letters, and a completion certification for alcohol and drug related studies. After careful consideration the Board concluded that the Applicant’s post service conduct is insufficient to mitigate his misconduct while on active duty. Relief denied.

In the absence of a complete service record, 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”. The record does document the Applicant’s notification of intent to be administratively discharged and the Commanding Officer’s request for authorization to separate the Applicant from the naval service. 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 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.
B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a.
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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