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NAVY | DRB | 2005_Navy | ND0501133
Original file (ND0501133.rtf) Auto-classification: Denied


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

ex-AR, USNR
Docket No. ND05-01133

Applicant’s Request
The application for discharge review was received on 20050627. 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 20051206. 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 application:

“IM TRYING TO FURTHER MY EDUCATION BY USING MGIB.
 I KNOW I MADE THE WORST MISTAKE OF MY LIFE BY GETTING DISCHARGED UNDER OTHER THAN HONORABLE CONDITIONS, BUT I DONT WANT TO SPEND THE REST OF MY LIFE PAYING FOR IT. I WANT A CHANCE TO REDEEM MYSELF TO MY FAMILY, MY FRIENDS AND MY COMMUNITY.”

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: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980710             Date of Discharge: 19990706

 Length of Service (years, months, days):

         Active: 00 11 08 (Does not exclude lost time.)
         Inactive: 00 00 27

 Time Lost During This Period (days):
         Unauthorized absence: 4 days
         Confinement:              None

 Age at Entry: 19

 Years Contracted: 8

 Education Level: 12                                 AFQT: 69

 Highest Rate: AR

 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): Battle “E” Ribbon, Armed Forces Expeditionary Medal
* 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 :

980708:  Pre-service waiver for drugs granted.

 980729:  Commenced active duty for a period of 36 months.

980730:  Mental Status Exam conducted at Recruit Evaluation Unit, Branch Clinic, Naval Hospital Great Lakes, IL. SR (Applicant) was interviewed and evaluated this date. On the basis of reported history, interview and assessment data, and behavior observed while at RTC, it has been determined that the SR (Applicant) is returned for a trial of duty/return to duty. Mental Status Exam is within normal limits. Individual was thoroughly assessed to rule out suicidal or homicidal risk and has denied any present thoughts or intended gestures or plans. The SR (Applicant) educated as to condition this date.
         Diagnosis: Axis I: No Diagnosis.
         Axis II: No Diagnosis.
990312:  Applicant to unauthorized absence at 0615 on 990311.

 990316:  Applicant from unauthorized absence at 1930 on 990315 (4days/surrendered).
990408:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: marijuana.
         Award: Forfeiture of $479 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

990427:  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.
990427:  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.


990520:  Commanding Officer, USS DWIGHT D EISENHOWER recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: “AR J_(Applicant) misconduct is incompatible with the naval service. I have determined that AR J_(Applicant) has no potential for future service and recommend that he be administratively separated with an other than honorable discharge by reason of misconduct due to drug abuse.”

990701:  Commander, Cruiser-Destroyer Group 8 directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

 Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990706 by reason of misconduct due to drug abuse (A and B) 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 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 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

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 a 4-day period of unauthorized absence and nonjudicial punishment proceedings for violation of Articles 112a of the UCMJ. 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 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 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. 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use, possession, etc, of controlled substances.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

E. 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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