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NAVY | DRB | 2005_Navy | ND0500942
Original file (ND0500942.rtf) Auto-classification: Denied


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

ex-CECA, USN
Docket No. ND05-00942

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 general (under honorable conditions). 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 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 attached document/letter:

“This letter is in regards to my military discharge in March of 2000 from the United States Navy Battalion 74. I was discharged for testing positive for cocaine on a random drug test. Since my discharge I’ve attended community college and graduated with honors earning a certificate in HVAC Systems and Refrigeration. My life has turned around since leaving the military. In February of 2002 I met my current wife and decided it was time to start a family life. We have been married now for almost 2 years and are raising her 9 year old daughter H_, my step daughter. In our house we have no tolerance of drugs based on our own decision. I currently work as an HVAC service technician for Blaze Heating and Air Conditioning Contractors in Winston-Salem North Carolina. We have done quality jobs for people such as D_ J_, R_ C_, E_ I_ and the owner of all the Applebee’s on the east coast. Prior to working at Blaze Air, I worked at Billing’s Heating and Air for four years while attending school. At my job I work on and service everything from boilers to oil, gas, and electric furnaces along with heat pumps and air conditioning. My ability to also due electrical work makes very valuable at the place were I work. I am asking for upgrade of my discharge to General Discharge so that I may excel to work at larger companies and one day possibly run my own Heating and Electric company. Even though my time in the military ended in the wrong way I do think that joining the Navy was the best thing I ever did. It taught me a lot about life and how lucky we are to live here in America.

Should you need further information or have questions, my contact information above.

Sincerely,

D_ C. P_ (Applicant) ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Certificate of Completion from Forsyth Technical Community College (HVAC/H3 Class) dated August 5, 2003
NAVPERS 1070/604 Awards Listing from Applicant’s service record
Evaluation Report & Counseling Record for performance ending July 15, 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980528 – 19980714               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980715             Date of Discharge: 20000307

 Length of Service (years, months, days):

         Active: 01 07 23
         Inactive: None

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

 Age at Entry: 20

Years Contracted: 4 (12-month extension)

 Education Level: 13                                 AFQT: 76

 Highest Rate: CECN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)              Behavior: 3.0 (1)                 OTA: 3.33

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy “E” Ribbon, Navy Rifleman Marksmanship Ribbon


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 :

980528:  Applicant briefed on Navy's policy of drug and alcohol abuse.
991229:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 991220, tested positive for cocaine.
000106:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
         Award: Forfeiture of $537.90 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
000210:  Commanding Officer, U.S. Naval Mobile Construction Battalion SEVENTY-FOUR recommended discharge under other than honorable conditions by reason of misconduct drug abuse. Commanding Officer’s comments: “On 13 December 1999, this command conducted a urinalysis unit sweep which resulted with CECA D_ C. P_ (Applicant) providing a positive sample for cocaine. Per the Navy’s Zero Tolerance policy, CECA P_ (Applicant) is recommended for immediate separation from the Naval service with an Other Than Honorable characterization of service.”

000215:  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 as evidenced by a positive urinalysis, NAVDRUGLAB JAX FL 291445 DEC 99.

000215:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

000217:  Chief of Naval Education and Training 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 20000307 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 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 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.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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. While the Board applauds the Applicant’s educational pursuits and devotion to his family, The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced a verifiable employment record, documentation of community service, evidence of substance free lifestyle, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct. At this time, the Applicant has not provided sufficient documentation of As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. 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 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), 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 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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