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NAVY | DRB | 2005_Navy | ND0501028
Original file (ND0501028.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND05-01028

Applicant’s Request
The application for discharge review was received on 20050602. 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 20051020. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety 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 am requesting this upgrade because of the circumstances that it has on any future employment opportunities. For the purpose of obtaining any benefits that are owed to me.

My issue, being the fact that, since 1993, I have experienced many difficult setbacks. It has become “increasingly hard” to maintain a stable life. Based on the type of separation I’ve received, hardly any employer will consider hiring me. As a result, I go day-to-day seeking odd jobs or whatever I can find, and also, sometimes residing at shelters. I cannot afford a place to stay, let alone, get any medical benefits. It’s been “12” years since I’ve been separated. All I kindly ask of you, is to consider me for a “Honorable Discharge”.”

 Applicant’s Remarks: (Taken from DD Form 293)

“The sole purpose of submitting this document is solely that I believe I should have some entitlement to separation benefits. I have honestly served at least over 24 months of active duty in the United States Navy. Although I am fully aware that I tested positive on a drug test, I should at least receive some sort of monetary compensation for my long-suffering. I am currently homeless, with no job. I served my country, and with that, again, should at least merit some sort of gratitude for the service I provided to this country. With all due respect, a request for an “Honorable Discharge” should kindly be considered.”

 Documentation
Only the service and medical records were reviewed. The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19891118 - 19900722                        COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19900723             Date of Discharge: 19930602

 Length of Service (years, months, days):

         Active: 02 10 10
         Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 32

 Highest Rate: FN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.2 (4)              Behavior: 3.1 (4)                 OTA: 3.2
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : National Defense Service Medal, Navy “E” Ribbon


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

900725:  Applicant briefed on Navy's policy of drug and alcohol abuse.
920123:  Applicant failed to meet the physical readiness standards due to failing the official PRT. Applicant enrolled in the command’s physical conditioning program. Applicant acknowledged the administrative and statutory actions.

920423:  NJP for violation of UCMJ, Article 108:
         Specification: On active duty, without prior authority, willfully destroy military property of the United States.
         Award: Forfeiture of $444 per month for 2 months, extra duty for 15 days. No indication of appeal in the record.

 930510:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 930430, tested positive for THC.

 930511:  NJP for violation of UCMJ, Article 112a:
 Specification: On active duty wrongfully use a controlled substance, while a member of the United States Navy.
          Award: Forfeiture of $501 per month for 2 months, restriction and extra duty for 45 days, reduction to FA. No indication of appeal in the record.
930512:  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 urinalysis.
930515:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the rights to obtain copies of the documents used to support the basis for the separation and to submit a statement.
Unkown:  Applicant’s statement: “This statement is written as to my response concerning a discharge I am very aware of my charge and what I received at captain’s mast after the proceedings I spoke with the administrative officer, Mr. C_, at the ship’s office. He informed me of the consequences I would face considering the type of discharge I would receive. One of the things he mentioned was that I would possibly lose my G. I. Bill . Losing that would really affect me. I know deep down that what I did was wrong. I know that saying sorry would not change much no matter how many times I say it. I respectfully request that, if possible, that you really think this over and hopefully let me keep it. From here on out, this is what I really need. I don’t have much else after this to hold on to. I need it more than anything else. Please consider my statement.” [Extracted from Commanding Officer’s message dated 930518.]

930518:  Commanding Officer, USS INGRAHAM recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by member’s NJP on 11 May 93 for misconduct due to drug abuse. Member tested positive for THC during a unit sweep urinalysis. Commanding Officer’s comments: “FA W_ (Applicant)’s personal behavior since reporting aboard has been marginal. He fully understood the Navy’s policy on drug abuse and chose to ignore regulations. FA W_ (Applicant) is strongly recommended for immediate separation from the naval service with a discharge characterization of other that honorable.”

930524:  Alcohol/Drug dependency evaluation: Impression: Not dependent on drugs or alcohol. Recommend Level I if retained on active duty.

930526:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

930602:  Applicant signed acknowledgement of being afforded the opportunity to receive a minimum of 30 days in-patient treatment at a VA hospital prior to discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930602 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).

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. An under other than honorable conditions discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Articles 108 and 112a of the UCMJ. The Applicant also failed to meet the Navy’s physical readiness standard and was placed on his command’s physical conditioning program. 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. Relief is not warranted.

The following is provided for the edification of the Applicant. 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.
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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any 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. 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 5/93, effective 05 Mar 93 until 21 Jul 94, 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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