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NAVY | DRB | 2005_Navy | ND0501526
Original file (ND0501526.rtf) Auto-classification: Denied


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

ex-ICFN, USN
Docket No. ND05-01526

Applicant’s Request
The application for discharge review was received on 20050913. 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 20060621. After a thorough review of the available 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 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:

“Issue (1) Issues for Honorable discharge
I feel my discharge was improper for the reason that I asked for help from the navy. Because I wanted to better myself, not lose a job and give up what I had earned. I just wanted help. See documents.

Issue (2) I feel my discharge was improper and should be Honorable for the reason I may Receive my GI Bill. I have provided documentation for the Navy upon my discharge that I was to receive my GI Bill.

Issue (3) I feel my discharge was improper and should become Honorable for the Reason that on my DD214 in Block 15b it is marked “Yes” which also makes me eligible for the GI Bill.

Issue (4) I feel my discharge was improper and should become Honorable for the reason that I am pursuing a college education and have started the process. I have been accepted to Austin Peay State University in TN. As I stated in my first “issue” from the beginning I wanted to better myself.”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Applicant’s suspect’s acknowledgement and waiver of rights with statement, dtd January 12, 2004
Incident printout retrieved March 10, 2004
One page from Applicant’s service record (page 1 of Administrative Separation Recommendation dtd August 13, 2004)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010822 - 20010920      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010921             Date of Discharge: 20040817

 Length of Service (years, months, days):

         Active: 02 10 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: 9 GED                     AFQT: 70

 Highest Rate: ICFN

 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): Navy Unit Commendation, Battle “E” Ribbon, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon
* Not Available


 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 :

010821:  Pre-service waiver for DEP discharge and positive DAT granted.

020612:  NJP for violation of UCMJ, Article 128: Assault with a means likely to produce grievous or bodily harm.
         Award: Forfeiture of $240 per month for 1 month, restriction and extra duty for 14 days. No indication of appeal in the record.

040112:  Applicant’s voluntary statement. [Extracted from supporting documents submitted by the Applicant.]

040405:  Substance Abuse Rehabilitation Department with J_ E. S_, PhD, Clinical Psychologist: Applicant referred for substance abuse evaluation due to 15 January 2004 member self-referred to command DAPA for steroid use. Diagnoses:
 AXIS I: Other (steroid) abuse in sustained partial remission (no use for 2 months).
          AXIS II: Antisocial and borderline traits, resolving. No diagnosis.
         AXIS III: Right knee ache. 6/7 of 10 abrasions/swelling.
         AXIS IV: New marriage, steroid issue at command.
 AXIS V: GAF = 71-80.
Substance abuse treatment is not indicated.
Recommendations by D_ B_, Addictions Counselor-Intern: SNM has discontinued use and does not appear likely resume use. Attend individual/couple counseling through FFSC. Attend chaplains PREP course by calling. Attend CREDO.
040629:  Applicant notified of intended recommendation for administrative separation. [Extracted from documentation submitted by the Applicant.]

040722:  Applicant found qualified for separation.

040726:  Applicant to unauthorized absence, intentions unknown.

040813:  Commanding Officer, USS BONHOMME RICHARD (LHD 6) recommended administrative separation by reason of misconduct due to drug abuse. [Extracted from documentation submitted by the Applicant.]


Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040817 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under 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 government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In the Applicant’s case, in the absence of a complete discharge package and without credible and substantial evidence to refute the Board’s presumption, the Board evoked the presumption of regularity. Specifically, the Board presumed that the Applicant was afforded all rights which he elected and that the Applicant’s discharge was directed by proper authority.

Issue 1. The Applicant contends that his discharge is improper because he “asked for help from the navy.” The Applicant admitted to the use of illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. A general 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. T he Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 128 of the UCMJ. The Applicant’s violation of Article 128 is considered the commission of a serious offense. The Applicant’s conduct is a violation of the special consideration given the Applicant at his waivered-enlistment. 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.
Issues 2-4. 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 Board discovered no impropriety after a review of Applicant’s case. Relief is not warranted.

The following is provided for the edification of the Applicant. 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 . 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 128, assault.
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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