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NAVY | DRB | 2005_Navy | ND0500765
Original file (ND0500765.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-OSSR, USN
Docket No. ND05-00765

Applicant’s Request
The application for discharge review was received on 20050328. The Applicant requests the characterization of service received at the time of discharge changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811. 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. I should not have been given the first drug screen.”
“2. The seal was not on my specimen cup when it was returned to me.”
“3. My discharge physical was not properly completed.”
“4. The results of the second drug screen were not given to me.”
“5. I was discharged prior to receiving an answer from the message for a time extension.”
“6. The time frame from my CO’s mast to my discharge was way below the average.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant dated Monday, March 14, 2005 (2pgs)
Applicant’s NJP Appeal Letter dated October 27, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: USN                        920713 - 960812  HON

 Period of Service Under Review :
Date of Enlistment: 981218               Date of Discharge: 991102

 Length of Service (years, months, days):

         Active: 00 10 15                  (Total service 04 11 15)
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

Education Level: 12                        AFQT: 75

 Highest Rate: OSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*             OTA: NA*

 Military Decorations: None

 Unit/Campaign/Service Awards: National Defense Service Medal
Days of Unauthorized Absence: None

*Not available.

 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 :

981211:  Chief, Bureau of Medicine and Surgery states Applicant does not meet established physical standard due to idiopathic thrombocytopenic purpura; history of splenectomy. A waiver of the physical standards IS recommended.

981215:  Commander, Navy Recruiting Command approved waiver of physical standard.

981218:  Re-enlisted USN for 4 years.

 990805:  NJP for violation of UCMJ, Article 86: Absence without leave.
         Award: Forfeiture of $537.00 pay per month for 1 month, restriction and extra duty for 30 days, reduction to E-2. No indication of appeal in the record.
991022:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc of a controlled substance.
Award: Reduction to E-1. No indication of appeal in the record.
991024:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to drug abuse.

991024:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.
illegible:       Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

991025:  Applicant transferred to Transient Personnel Unit Jacksonville, Florida.

991025:  Applicant did not elect VA Treatment for drugs and/or alcohol dependency prior to discharge.

991026:  CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991102 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 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).

 Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. Normally, to permit relief a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. 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. Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by two nonjudicial punishment (NJP) proceedings. His first NJP resulted from his violation of Article 86 (unauthorized absence). A second NJP for violation of Article 112a (wrongful use of a controlled substance) followed his positive urinalysis for THC; this violation substantiates 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. Separation processing is mandatory for sailors who abuse illegal drugs and generally results in a characterization of service of under other than honorable conditions. Relief denied.

The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant’s allegations that he should not have been given the urinalysis, that his specimen cup was returned to him without a seal and that he was not provided the results of a second urinalysis do not refute the presumption of regularity in this case. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. There is credible evidence in the record that the Applicant used illegal drugs. 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. The Board found no indication in the record that the Applicant was treated inequitably or improperly. Relief denied.

The Applicant contends that he was discharged prior to receiving an answer to his request for an extension and the time period from Captain’s Mast to discharge was less than normal. The Applicant was properly notified and waived his right to appear before an administrative board. There was nothing in the records, nor did the Applicant provide any documentation, to indicate there existed error of fact, law, procedure, or discretion at the time of discharge. There was no rights violation and no basis for relief.

When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his alleged improperly completed discharge physical. Relief is not warranted.

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 did not submit documentation for the board to consider. Based on a lack of sufficient post service factors 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to her 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. 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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