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NAVY | DRB | 2005_Navy | ND0501138
Original file (ND0501138.rtf) Auto-classification: Denied


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

ex-DN, USN
Docket No. ND05-01138

Applicant’s Request
The application for discharge review was received on 20050629. 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 designated the American Legion as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112. 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 and reason for discharge shall not change. The discharge shall remain General (Under 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 currently a Dental assistant and I would like an upgrade to further my education and become a Dental Hygienist.”

 Representative submitted no issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Appointment of veterans service organization as claimant’s representative
Applicant’s DD Form 214
Character Reference ltr from D_ W_, unsigned, dtd June 6, 2005
Character Reference ltr from Dr. T_ F_, dtd January 31, 2005
Cover letter from the American Legion, dtd June 23, 2005 (2 pages)
Cover letter from the American Legion, dtd September 20, 2005
Character Reference ltr from E_ R_, Applicant’s father, dtd August 25, 2005
Character Reference ltr from L_ B_, dtd July 29, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980724 - 19980922      COG
         Active: None
Period of Service Under Review :
Date of Enlistment: 19980923             Date of Discharge: 20030219

 Length of Service (years, months, days):

         Active: 04 04 27
         Inactive: None

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

 Age at Entry: 18

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 32

 Highest Rate: DN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (5)                      Behavior: 2.60 (5)                OTA: 3.07

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy “E” Ribbon, First Good Conduct Medal for period ending 01SEP22, National Defense Service Medal, Armed Forces Expeditionary Medal


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

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620 .
Chronological Listing of Significant Service Events :

980724:  Pre-service waiver for possession of drug paraphernalia granted.

020906:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc., of controlled substances.
         Specification: In that Dentalman D_ M. R_(Applicant), U.S. Navy, Branch Dental Clinic New London, Naval Dental Center Northeast, on active duty, did, at Naval Submarine Base New London, Groton, CT, on or about 0242 13 August 2002 wrongfully possess trace elements of marijuana.
         Award: Forfeiture of $734 per month for 1 month, reduction to E-2. Reduction suspended for 6 months. Appeal 020913. No further information found in service record.
020906:  Applicant notified of intended recommendation for discharge by reason of misconduct - drug abuse.

020906:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
021115:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation (recommended suspension for 12 months), and recommended discharge with a general (under honorable conditions).
021218:  Commanding Officer, Naval Dental Center Northeast recommended discharge with a general (under honorable conditions) by reason of misconduct - drug abuse. Commanding Officer’s comments: “Dentalman R_(Applicant) was processed for administrative separation due to misconduct - drug abuse On 15 November 02, an administrative separation board found misconduct and recommended separation (suspended for twelve months) with a General (GEN) discharge. I disagree with the twelve-month suspension and recommend immediate separation:
i. DN R_ (Applicant) readily admitted that a bag containing trace elements of marijuana was in the center console of his privately owned (POV).
ii. His explanation of how that bag entered his POV changed twice. He first stated at XOI that he had no idea how it got there Then he stated that he thought a male acquaintance with whom he worked in a civilian job put it there. The written statement he submitted with his appeal suggested that a female acquaintance put it there.
iii. He admitted at XOI and at Captain’s Mast that he spent time with acquaintances as they were smoking marijuana on more than one occasion.
iv. He admitted that he loaned his POV on more than one occasion to people whom he had seen using illegal drugs.
v. The PREVENT certificate in enclosure (2) indicates that he knew the Navy’s drug policy.
vi. DN R_(Applicant) enlisted with a drug waiver for use of illegal drugs and for a civilian conviction for possession of paraphernalia, which indicates that he was completely aware of the Navy’s drug policy.
vii. DN R_(Applicant) reports a different social security number in his Questionnaire for National Security Positions, enclosure (1), than he does in other documents.
Despite repeated reminders throughout his career about the Navy’s drug policy, DN R_(Applicant) continued to spend time with and repeatedly loaned his car to people whom he had observed using drugs. His record of behavior combined with inconsistencies in his statements provides little confidence in his credibility and potential for future service. Since the board found misconduct in this case, in the interest good order and discipline, I recommend immediate separation. However, because he did not test positive for marijuana in his urinalysis, I will support the board’s recommendation for a General Discharge .”
030203:  CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030219 by reason of misconduct due to drug abuse (A) with a service characterization of general (under 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 possessed illegal drugs. The Applicant was awarded nonjudicial punishment (NJP) for a violation of UCMJ Article 112a, wrongful drug possession. The Applicant was pulled over while entering the base. A search of his vehicle revealed a green leafy vegetable like substance later identified as marijuana. As the Applicant’s case wound its way through the administrative process, the evidence of record reveals that the denials and explanations as to the source of this marijuana were not consistent. Furthermore, the Applicant appeared before an administrative discharge board, was represented by qualified counsel, and had a full opportunity to present his case. The unanimous conclusion of that board was that the Applicant had committed misconduct by reason of drug abuse. Based on the evidence of record, the NDRB could discern no improprieties or inequities in the processing of the Applicant’s case. There was sufficient evidence to reasonably conclude the Applicant committed the misconduct with which he was charged. Relief denied.

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 possess 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 with a general (under 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.
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 could be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Board received and considered all of the Applicant’s submissions, specifically, his numerous letters of recommendation. After careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate his misconduct while in the Naval service. Relief denied.

 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. The Applicant can provide any additional 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), 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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