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NAVY | DRB | 2005_Navy | ND0500898

Original file (ND0500898.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-SKSN, USNR
Docket No. ND05-00898

Applicant’s Request

The application for discharge review was received on 20050502. The Applicant requests that his characterization of service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “NON MIS-CONDUCT”. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221. 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 both the characterization of the discharge and the reason for 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:

“I popped positive on a urinalysis for marijuana. That same week I spent $5,000 on a Lawyer. His advice was to go get a hair sample, because legally it goes back 90 days. I got Both done, urine & hair. Both were negative!! Both test results, paid for myself to prove my innocence, one hair sample, which was conducted that same week. Also one urine sample. Both negative.

Applicant’s Remarks: Respectfully Requesting upgrade discharge to “fully honorable”. Also change “Reason for Separation”. NO MIS-CONDUCT.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter from BCNR dtd March 15, 2005
Letter from Applicant dtd January 10, 2005
Drug Testing Report from United States Drug Testing Laboratories dtd December 13, 2004 (2)
Drug Screening from SECON dated December 14, 2004
Applicant’s DD Form 214 (3)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: None
         Active: None

Period of Service Under Review :

Date of Enlistment: 20021127             Date of Discharge: 20041223

Length of Service (years, months, days):

         Active: 02 00 26
         Inactive: 00 01 00

Time Lost During This Period (days):

         Unauthorized absence: none
         Confinement:              none

Age at Entry: 19

Years Contracted: 8 (Reserve contract with 4 year active duty commitment)

Education Level: 12                                 AFQT: 53

Highest Rate: SKSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.0 (2)              Behavior: 3.5 (2)                 OTA: 3 .16 (2)

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):

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .

Chronological Listing of Significant Service Events :

021127: Commenced 4 year active duty commitment.

041223: Applicant declined drug/alcohol rehabilitation.

041223: DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct drug abuse, per MILPERSMAN 1910-146.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041223 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). The Board presumed regularity in the conduct of governmental affairs (D).

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, processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged. 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 a less than honorable characterization of service. The Board could discern no impropriety or inequity. Relief denied.

The Applicant contends that he did not use marijuana and submitted two independent negative drug tests dated two weeks prior to his discharge. Unfortunately, as a result of an incomplete service record and the Applicant’s inability to substantiate his documentation, many issues remain in question. Specifically, the Board could not determine the amount of time that elapsed between the Applicant’s Navy drug test and the private drug test. Additionally, the legitimacy and proficiency of the independent testing laboratory was not established to the Board’s satisfaction. The Board found the documentation submitted to be insufficient to serve as a basis for granting an upgrade. Since a complete discharge package was not contained in the Applicant’s service record the Board presumed regularity of governmental affairs. The Board presumed under applicable regulations, that the Applicant was properly notified of his recommended discharge, was afforded the opportunity to be advised by counsel, and the right to appear before an administrative discharge board was offered. 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 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. Relief on this basis is denied.

The Applicant requests that his narrative reason for separation be changed to “NON-MISCONDUCT”. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. The Applicant was discharged as a result of his violation of UCMJ Article 112a (drug abuse). For the edification of the Applicant, the Naval Military Personnel Manual does not permit “NON-MISCONDUCT” as an authorized narrative reason for separation. “Misconduct” is the appropriate narrative reason for use, possession, distribution, or manufacture of a controlled substance directed by the Naval Military Personnel Manual. No other narrative reason for separation could more clearly describe why the Applicant was discharged. To change the narrative reason for separation would be inappropriate. Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. This issue is without merit, 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 evidence of a drug 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 provide post service documentation for the Board’s consideration.

The Applicant remains eligible for and is encouraged to request a personal appearance hearing. The application must be 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 (additional drug testing, a current criminal background check, documentation of community service, continued education, drug treatment certificates, employment verification) and 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), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, 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, 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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NAVY | DRB | 2005_Navy | ND0500898

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