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NAVY | DRB | 2005_Navy | ND0501414
Original file (ND0501414.rtf) Auto-classification: Denied


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

ex-SM3, USN
Docket No. ND05-01414

Applicant’s Request
The application for discharge review was received on 20050823. 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 20060614. 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:

“As a sailor in the United States Navy, I proved to be an outstanding signalman. I demonstrated superb military bearing and would continually challenge myself too succeed. I entered an E-1 and worked hard to obtain an E-5 rating. I never failed a test exam for advancement. On both tests my scores were rated at higher than 99% of the rest of those who took the same test. In February of 2004 I was an E-5, SM2(SW) with only five months left of my obligated military service. I was a great sailor who made a bad choice. I feel an other than honorable discharge would suite a bad sailor. It is my request that I may be up-graded to a general discharge so I can better succeed as a civilian.”

Applicant’s Remarks: (Taken from the DD Form 293) Supporting documents, evaluations included specifically for item 43 on each. Weather upgraded or denied up-grade, I respectfully request a response. Any recommendations are appreciated.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214/Court Memorandum
Second Class Petty Officer Title Authority Letter dtd November 13, 2003
Enlisted Surface Warfare Specialist Qualification Letter dtd October 20, 2003
Evaluation Report & Counseling Records (5 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Inactive: USNR (DEP)     20000110 – 20000124               ELS
Inactive: USNR (DEP)     20000623 – 20000709               COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20000710             Date of Discharge: 20040428

 Length of Service (years, months, days):

         Active: 03 09 18 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 26 days (Extracted from DD Form 214)
         Confinement:              none

 Age at Entry: 18

Years Contracted: 4

Education Level: 12                                 AFQT: 62

 Highest Rate: SM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.0 (5)              Behavior: 3.2 (5)                 OTA: 3 .33

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Navy “E” Ribbon, Sea Service Deployment Ribbons (2), Humanitarian Service Medal.


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 :

000623:  Pre-service waiver for drug use granted.

000710:  United States Navy Illicit Behavior Screening Certificate.

040329:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
 Violation of UCMJ, Article 85: Desertion.
         Award: Forfeiture of $987.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. No indication of appeal in the record.

040422:  GCMCA, Commander, Amphibious Group TWO authorized the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.


Service Record contains a partial Administrative Discharge package.
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 20040428 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 available 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).

 The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, that the discharge was not proper and equitable. The service record contains a partial Administrative Discharge package. The Board presumed the Applicant was notified of the intended recommendation for discharge by reason of misconduct due to drug abuse, was advised of his rights and provided the opportunity to consult with counsel, and elected or waived each right. The Board presumed that the Commanding Officer, USS Nashville (LPD-13), recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Relief denied.

 The Applicant contends that his discharge is inequitable because he was “an outstanding signalman” and “demonstrated superb military bearing and would continually challenge myself to succeed.” 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. Additionally, the Applicant was punished at NJP for violation of UCMJ Article 85 – desertion, also considered a serious offense. 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.

The Applicant requests an upgrade so he “can better succeed as a civilian.” There is no requirement or law that grants recharacterization solely on the issue of enhancing employment opportunities. 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. Relief is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. 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.

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 additional evidence related to this 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. 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 of a controlled substance, and Article 85 - desertion.

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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