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NAVY | DRB | 2005_Navy | ND0501104
Original file (ND0501104.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND05-01104

Applicant’s Request
The application for discharge review was received on 20050620. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or 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 20060406. 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 4 to 1 that the character of the discharge and reason for 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:

“My discharge was inequitable because it was based on one isolated incident in a more than 4 year service which included a honorable discharge and re-enlistment. I declined a discharge board I found out I was HIV positive. An upgrade would help with my quality of life. With an OTH I am not able to receive any medical help for my HIV. Had I known about my HIV before I signed away my rights to a discharge board, I would have fought for a higher discharge. After testing HIV positive while still on active duty I tried to get my second chance at the discharge rights. I was denied this. I had 4 years of spotless service before this one huge mistake that I will regret for the rest of my life.”

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

“Dear Members, please consider my medical needs as well as my great service prior to the discharge. I would love an Honorable discharge but feel a General under honorable conditions would be a blessing. I loved the United States Navy and was proud to have served. If I could change the outcome of my career I would. I strive everyday to love a job as much as I love the Navy. Please don’t let my one mistake cost me years of my life. Please If you can find it in your selves to upgrade my discharge I would be forever in your debt. Thank you.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Standard Form 180, dtd June 10, 2005
Twelve pages from Applicant’s service record
Letter of Appreciation, dtd August 27, 2003 (2)
Good Conduct Award, dtd May 17, 2003
Certificate of reenlistment, dtd March 25, 2004
Honorable discharge certificate, dtd March 24, 2004
Certificate of achievement, dtd May 21, 2003
Certificate of Completion, Field Medical Service Technician Class, dtd June 14, 2003
Chronological record of HIV testing
One hundred and forty pages from Applicant’s medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000331 - 20000517      COG
          Active: USN      20000518 - 20040324      HON
Period of Service Under Review :
Date of Enlistment: 20040325             Date of Discharge: 20040622

 Length of Service (years, months, days):

         Active: 00 02 28
         Inactive: None

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

 Age at Entry: 27

 Years Contracted: 4

 Education Level: 12                                 AFQT: 53

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NOB*                                   Behavior: 1.00 (1)                OTA: 1.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, First Good Conduct Award for period ended 03May17
*Not observed


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 :

040325:  Reenlisted this date for a term of 4 years.
040503:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040429, tested positive for THC.

040506:  NJP for violation of UCMJ, Article 112: HM3 V_ B. C_(Applicant), USN, did on or about 040418, wrongfully use Tetrahydrocannabinol (THC) a scheduled one controlled substance.
         Award: Forfeiture of $793.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

040506:  NAVPERS 1070/613 retention warning issued. [Extracted from CO’s letter of 040512.]

040510:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. Applicant notified that if separation is approved, the least favorable characterization of service possible is under other than honorable conditions.

040511:  Applicant advised of rights, and having not consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040512:  Commanding Officer, Naval Hospital Beaufort, recommended to Commanding General, Marine Corps Recruit Depot, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “Based on the fact that HN C_ tested positive for marijuana, and in light of the Navy’s zero-tolerance policy, I feel that this member should be separated from the United States Navy with his characterization of service categorized as Other Than Honorable.”

040517:  SJA reviewed the proceedings and determined that they are sufficient in law and fact.

040517:  Commander, Marine Corps Recruit Depot/Eastern Recruiting Region, Parris Island, SC, directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

 040517:  Chronological Record of HIV Testing: HIV Result: Positive, Date Blood Drawn: 040517. [Extracted from Applicant’s supporting documentation.]
040519:  Chief, Bureau of Medicine and Surgery notified Commanding Officer, Naval Hospital Beaufort that Applicant tested positive for the HIV antibody.

040524:  Restriction and extra duty portions of punishment are hereby set aside.

040604:  Naval Medical Center Portsmouth Virginia, HIV Evaluation Unit: Last Seronegative Test: 040109, First Seropositive Test: 040315. Infected Mid January through Mid March. Denies other illness or health problems. [Extracted from Applicant’s supporting documentation.]

040622:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority: MILPERSMAN, Article 1910-146.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040622 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).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. There is credible evidence in the record that the Applicant used illegal drugs. The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug use. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. 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 was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. Relief denied.

 The Applicant contends that his discharge is inequitable because he tested positive for HIV after he elected to waive his administrative discharge rights and subsequently was not permitted to elect an administrative discharge board. Despite the Applicant’s contentions, the NDRB could find no impropriety or inequity in the Applicant’s characterization of service. The record contained evidence that he was properly notified for separation by reason of misconduct due to drug abuse with a least favorable characterization of service of under other than honorable conditions and that he waived his rights with regards to an administrative discharge board. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record to suggest the Applicant ever attempted to withdraw his properly executed waiver of rights and elect an administrative discharge board. 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 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 .

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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