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NAVY | DRB | 2006_Navy | ND0600011
Original file (ND0600011.rtf) Auto-classification: Denied


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

ex-ITSA USN
Docket No. ND06-00011

Applicant’s Request
The application for discharge review was received on 20050928. 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 and a personal appearance discharge review before a traveling panel closest to Somerset, PA. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, DC at the Washington Navy Yard. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721. 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:

“I am requesting an upgrade of Honorable discharge so that I may take advantage of the Montgomery G.I. Bill which I contributed to my first year of service. I have grown to be a respectable member of society and I have learned from the mistakes I have made in the past. I am in continued care from the V.A. for an accident that I had in 1999. I have a steady job but I am trying to go back to college to continue my education. My family is not wealthy and I have been trying to save for college for 4 years. I have a 1-year-old son that is disabled and I want to be able to provide for him the way a father should. His medications alone total around $500/month and that is a large part of my paychecks. I am struggling to provide for him and an upgrade could help with my education or help me land better job.”

 Applicant’s Remarks: Taken from the DD Form 293 to the Board:

“Please, consider my request for an honorable upgrade for it can honestly help my family and I. My father is also very ill and I am trying to financially help him and my mother with their needs. I made a mistake but I truly have learned and grown because of the choice I made. I had almost 4 years of excellent service when I was on active duty. I was in the top 5 in “A” School and as an E-3 I was selected to work directly under the captain in setting up the LAN on board the USS Shreveport, LPD-12. I was a leader then and I am a leader now for my son and myself. I just want my son to be proud of his father and I want to advance in life as my father did before me. The choice is in your hands and I pray that you favor my request. I am at your mercy.

Thank You”
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: USNR (DEP)     19970728 - 19970820               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970821             Date of Discharge: 20010703

 Length of Service (years, months, days):

         Active: 03 10 13
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 64

 Highest Rate: ITSN

 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): Armed Forces Expeditionary Medal, Navy Unit Commendation, Navy Pistol Marksmanship
* 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 :

970728:  Applicant briefed on Navy's policy of drug and alcohol abuse.

990702:  Applicant arrested by civil authorities.

 991004:  Drug and Alcohol Program Advisor Administrative screening: SNM charged and convicted of DUI (BAC .13) court ordered ASAP Class.

9912xx:  Civil Conviction: General District Court Traffic Division Municipal Center Virginia Beach, VA for violation of DUI, noise, and no seatbelt.
Sentence: 1.) $350.00 fine and $32.00 court cost; 60 days jail (60 days suspended) VASAP; operators license suspended x 1 year; unsupervised probation x 1 year. 2.) $35.00 fine and $30.00 court cost. 3.) $25.00 fine. [Date unreadable.]

000224:  Counseling: Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.

000504:  Counseling: Advised of deficiency (appearance and responsibilities), notified of corrective actions and assistance available.

 000505:  Applicant completed ARD Norfolk Level I treatment.

 000606:  Retention Warning: Advised of deficiency (Convicted in the Traffic Division, General District Court, Norfolk, VA of driving with a suspended license on 1 March 00 and sentenced to $100.00 fine and 10 days in jail. The 10 days jail sentence is suspended for 12 months.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001031:  Counseling: Advised of deficiency (responsibilities), notified of corrective actions and assistance available.

001212:  Counseling: Advised of deficiency (performance and responsibilities), notified of corrective actions and assistance available.
010130:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 010124, tested positive for THC.

 010209:  NJP for violation of UCMJ, Article 112a: Unauthorized use of a controlled substance.
 Award: Forfeiture of $641.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
010209:  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 commission of a serious offense and misconduct due to drug abuse.

010214:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
010507:  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 and misconduct due to the commission of a serious offense, that the misconduct by reason of drug abuse warranted separation, and recommended a general (under honorable conditions) discharge.
010618:  Commanding Officer, Naval Computer and Telecommunications Area Master Station Atlantic, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to drugs.


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 20010703 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).

 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 or 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. The Applicant’s service was marred by civil convictions for driving under the influence and driving with a suspended license. The Applicant was counseled on four occasions for his performance and conduct and subsequently tested positive for use of THC. The Applicant was then awarded nonjudicial punishment for his violation of Article 112a of the UCMJ. The Applicant’s violation of Article 112a is the commission of a serious offense. The Applicant’s conviction for driving under the influence of alcohol is equivalent to the violation of Article 111 of the UCMJ; also a serious offense. 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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Relief is not warranted.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, 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 111, drunken driving or Article 112a, illegal use of a controlled substance.

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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