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NAVY | DRB | 2005_Navy | ND0500941
Original file (ND0500941.rtf) Auto-classification: Denied


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

ex-UTCA, USNR
Docket No. ND05-00941

Applicant’s Request
The application for discharge review was received on 20050511. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. 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 20050915. After a thorough review of the 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 character 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

Issues, as stated
Applicant’s issues, as stated on the application:

“I’m requesting an upgrade so I can use my G.I. Bill that I signed up for. If this request is granted I can further my education to provide a great life for my son.”


 Applicant’s Remarks: “I know I was very irresponsible for getting kicked out the Navy. I regret it everyday. The choices I made in the Navy left a terrible impact on my life. I’m just asking for a chance to make sure my son has a better life. I don’t want him to have to take the same rugged road I’ve been taking. Trying to find a job to support my family and pay bills is very hard with just a high school diploma. I desperately need my G.I. Bill for my family’s sake.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Voluntary Acknowledgement of Paternity

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000822 – 20000831      ELS (COG/DAT)
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20001017             Date of Discharge: 20020924

 Length of Service (years, months, days):

         Active: 01 10 04
         Inactive: 00 01 04

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

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 59

 Highest Rate: UTCN

 Final Enlisted Performance Evaluation Averages (number of marks):

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

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Medal, North Atlantic Treaty Organization, Rifle Ribbon (Sharpshooter), Sea Service Deployment Ribbon
*Not available


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 :

001017:  Enlistment waiver for previous DEP discharge granted.

001121:  Commenced 24 months active duty.

020812:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020808, tested positive for THC.
020822:  NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance-marijuana.
         Award: Forfeiture of $619.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
020910:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct drug abuse.
020910:  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.
020911:  Commanding Officer, U.S. Naval Mobile Construction Battalion THREE, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “UTCA P_ (Applicant) was an average performer. His use of drugs clearly demonstrates a total disregard for the policies and guidelines that govern the conduct of our Navy. UTCA P_ (Applicant) therefore has no potential for continued naval service and I recommend his immediate separation from the naval service by reason of misconduct due to drug abuse, and that his characterization of service be Under Other Than Honorable.”

020919:  Commander, Naval Air Warfare Center Weapons Division, authorized the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020924 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

There is credible evidence in the record that the Applicant used illegal drugs. 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’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. The Applicant violated the special trust and consideration given to him by Navy as evidenced by the enlistment waiver granted on 20001017 due to a previous DEP discharge. 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 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 .


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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