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NAVY | DRB | 2005_Navy | ND0500897
Original file (ND0500897.rtf) Auto-classification: Denied


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

ex-SN, USNR-R
Docket No. ND05-00897

Applicant’s Request
The application for discharge review was received on 20050427. The Applicant requested that his characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated a member of the United States House of Representatives as his representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that members of Congress do not normally represent Applicants before the Board. Written authorization must be obtained from that Congresswoman. Such authorization was not received; therefore the case was reviewed without representation.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117. 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 General (Under 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:

“1. There was no investigation of the matters directed to the medical CTR in reference to the altercation with medical personel.

1. My discharge was inequitable because it was based on one isolated incident in a period of 17 years + of service.

2. The “NAVY ATTORNEY” who handled the case did not in fact conduct an investigation of the medical center.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Letter from the Applicant, dtd March 31, 2005
Foothill-De Anza Community College District, Administrative and Peer Evaluation Form for Faculty, dtd October 10, 2003 (4 pages) (2)
DD Form 214 from Army Service (2)
Enlisted Performance Evaluation Report, period of March 31, 1993 to April 30, 1994 (3 pages)
Letter from Department of Veterans Affairs, dtd February 02, 2005
Certificate of completion, general corrosion control, dtd June 16, 1991

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive:
         Active: USA      19660817 - 19680816      HON
         USNR    197409xx – 197709xx*
         USNR    19790707 - 19810706      HON
         CAANG   19841228 - 19871223      Transfer to
                           Army Reserve
         USAR    19871221 – 19900922*
         USNR    19900922 – 19920921      HON

* Cannot verify dates and the characterization of service. Dates were listed on the pre-enlistment document, but documentation not contained in service record.

 Period of Service Under Review :
Date of Enlistment: 19930409             Date of Discharge: 19940918

 Length of Service (years, months, days):

         Active: 01 05 10
         Inactive: None

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

 Age at Entry: 46

 Years Contracted: 3

 Education Level: 16                                 AFQT: 43

 Highest Rate: SW2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (1)                       Behavior: 4.0 (1)                 OTA: 3.80
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Good Conduct Medal, Vietnam Service Medal, Vietnam Campaign Medal
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

930409:  Reenlisted this date for a term of 3 years.
930409:  Applicant signed page 13, Administrative Remarks stating, “…drug use in the Navy is prohibited and will not be tolerated”.
940422:  NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 940415, tested positive for THC.

 940531:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis for THC on 12 April 1994.

940531:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
940809:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse (THC), that such misconduct warranted separation, and recommended discharge with a general (under honorable conditions).
940818:  Commanding Officer, Armed Forces Reserve Center, Stockton, CA recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (THC). Commanding Officer’s comments: “I strongly recommend an Other Than Honorable character of discharge. SW2 H_ (Applicant) proved to be reluctant in providing sample for urinalysis in April 1994 and required Command Senior Chief to direct his participation. SW2 H_ (Applicant) also failed to contribute in a Command Sweep which took place on 6 August 1994.
 This behavior is well below standards of what is expected of a Selected Reservist in a leadership position as an E-5 is expected to hold. His military and personal behavior witnessed during his current enlistment has not proved to be the quality that could support a General Discharge.”
940909:  BUPERS directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19940918 by reason of misconduct due to drug abuse (A) with a service characterization of general (under 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 (B and C).

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. A general (under 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, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. Furthermore, separation processing is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged. The Applicant’s service record documented the unadjudicated violation of UCMJ Article 112a (wrongful use of a controlled substance) . 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. Separation under these conditions generally results in a less than honorable characterization of service. The Board could discern no inequity. Relief denied.

 The Applicant contends that his discharge was improper based on his attorney’s failure to investigate the medical center and the absence of an investigation into an altercation with medical personnel. The Applicant bears the burden of presenting 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 record contains no documentation regarding an altercation with medical personnel nor does it present evidence to substantiate the Applicant’s claim of faulty counsel. The facts are that the Applicant’s urinalysis was positive for THC, he was then properly processed for administrative discharge following an administrative discharge board where he was properly represented by a Navy JAG. The NDRB sees no connection between the Applicant’s misconduct and his alleged lack of investigations. The Applicant's discharge was proper. Relief denied.

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, and certification of non-involvement with civil authorities. The Applicant provided no post service documentation for the Board’s consideration.

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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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 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 .


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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