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NAVY | DRB | 2005_Navy | ND0500766
Original file (ND0500766.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00766

Applicant’s Request
The application for discharge review was received on 20050330. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area or a personal appearance hearing discharge review before a traveling panel. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the NDRB does not travel; all hearings are held in the Washington National Capital Region or Washington DC area or Washington, D.C. Metropolitan area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050908. 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 and reason for 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

Issues, as stated

 Applicant’s issues, as stated on the application:

“Age, racial, mental state, assaulted on numerous occasions, fear for my safty, to apply for benefits, know and/or unknown, mental, physical etc.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Department of Veterans Affairs Veteran’s Application for Compensation and/or Pension (9 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20030609 – 20030724               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20030725             Date of Discharge: 20040519

 Length of Service (years, months, days):

         Active: 00 09 25 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 27 days
         Confinement:              None

 Age at Entry: 20

 Years Contracted: 4

Education Level: 12                        AFQT: 55

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)             Behavior: 1.00 (1)                OTA: 1 .33

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.


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 :

040110:  Applicant to unauthorized absence, 0800 040110.

040112:  Applicant from unauthorized absence, 0745 040112 (1 day/surrendered).

040226:  Applicant to unauthorized absence, 0700 040226.
040323:  Applicant from unauthorized absence, 1500 040323 (26 days/surrendered).
040406:  NJP for violation of UCMJ, Article 86: (4 Specs), UA from appointed place of duty at 1000 on 040127, UA from appointed place of duty at 1800 and 2100 on 040203, and UA from unit between 040110-040112.
 Violation of UCMJ, Article 112a: (4 Specs)-Wrongful use of a controlled substance, marijuana, on 040122, 040127, 040323, and possession of a controlled substance, marijuana, on 040405.
         Award: Forfeiture of $621 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
040419:  Applicant notified of intended recommendation for discharge by reason of misconduct commission of a serious offense and misconduct drug abuse. Applicant notified that the least favorable characterization of service possible is under other than honorable conditions.
040419:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
040428:  Commanding Officer, USS Theodore Roosevelt (CVN 71), recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse. Commanding Officer’s comments: “AR C_(Applicant) is an admitted drug user who disregarded the zero tolerance drug abuse policy of the Navy. I therefore feel strongly that he has no potential for further naval service and should be separated immediately with an Other than Honorable discharge.”

040430:  Commander, Cruiser-Destroyer Group Eight, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
040503:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040429, tested positive for THC.
040519:  DD-214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged in absentia on 20040519 by reason of misconduct due to drug abuse with a service characterization of under other than honorable conditions (A). 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. There is credible evidence in the record that the Applicant used illegal drugs. The Applicant was awarded nonjudicial punishment (NJP) for four violations of UCMJ Article 112a and four violations of UCMJ Article 86, unauthorized absence. The evidence of record reveals that the Applicant wrongfully used drugs on three separate occasions and wrongfully possessed drugs on one occasion. Additionally, the Applicant was in an unauthorized absence status on five occasions totaling 27 days.

Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. 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 Applicant was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. Relief denied.

 The Applicant implies that his misconduct was the result of racism and assaults he received while in the Navy. The government enjoys a presumption of regularity in the conduct of its affairs. This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was the victim of racism or any other illegal activity. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

 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 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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