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NAVY | DRB | 2006_Navy | ND0600052
Original file (ND0600052.rtf) Auto-classification: Denied


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

ex-IC3, USN
Docket No. ND06-00052

Applicant’s Request
The application for discharge review was received on 20051004. 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 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 Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 No issues for consideration were submitted by the Applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: USNR                       19930616 – 19950405               HON

 Period of Service Under Review :
Date of Enlistment: 19950406             Date of Discharge: 19990318

 Length of Service (years, months, days):

         Active: 03 11 13
         Inactive: None

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

 Age at Entry: 24

 Years Contracted: 4

Education Level: 12                                 AFQT: 68

 Highest Rate: IC3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (1)              Behavior: 3.8 (1)                          OTA: 3. 8

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Battle E 3rd, Meritorious Unit Commendation, Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon, Expert 9 MM Pistol, M14 Rifle Expert, National Defense Service Medal, C. G. Joint Meritorious Unit Commendation


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 :

950406:  Reenlisted this date for a term of 4 years.

960421:  Naval Hospital Branch Clinic, Ingleside, TX: Applicant evaluated for competency for duty. Comments: “BAC 74 at 1100.” History: “[Applicant]... 35 min late to work and had ETOH on breath... two previous ETOH incidents in prior command... been to PREVENT.”
960424:  NJP for violation of UCMJ, Article 86: Unauthorized Absence.
         Award: Restriction for 15 days. No indication of appeal in the record.
         [Extracted from Commanding Officer’s Letter, dtd 990304.]

960530:  Naval Hospital Branch Clinic, Ingleside, TX: Applicant to medical screening for DAPA. Medical Officer recommended Level II treatment.

960618:  Naval Hospital Branch Clinic, Ingleside, TX: Applicant found not competent for duty due to alcohol in system (0930).

960619:  Naval Hospital Branch Clinic, Ingleside, TX: Applicant found not competent for duty due to alcohol in system. History: “[Applicant] consumed about 15 cans of Miller Lite – 8 shots of whiskey. Passed out and was detained in jail for several hours last night. Went to work this AM.”

960625:  NJP for violation of UCMJ, Article 86: Unauthorized Absence.
         Award: Restriction for 45 days, reduction to E-3. No indication of appeal in the record.
         [Extracted from Commanding Officer’s Letter, dtd 990304.]

970205:  Recent NAVPERS 1070/613, Administrative Remarks (Counseling/Warning) dated 97Feb05.
         [Extracted from Commanding Officer’s Letter, dtd 990304.]

 981204:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 981125, tested positive for cocaine.
9903XX:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to violation of UCMJ article 112a, wrongful use of a controlled substance, misconduct due to commission of a serious offense and misconduct due to pattern to misconduct, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
         [Extracted from Commanding Officer’s Letter, dtd 990304.]

990304:  Commander, Mine Countermeasures Squadron THREE, recommended to Commander, Mine Warfare Command, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense. Commanding Officer’s comments: “After a thorough review of the accused’s service record and the Administrative Board’s record of proceedings, I strongly recommend administrative discharge with a characterization of “other than honorable.”
990308:  Applicant found fit for separation.

 990309:  Commander, Mine Warfare Command, directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990330:  Commander, Mine Countermeasures Squadron THREE, informed Commander, Naval Personnel Command, that the Applicant was discharged under other than honorable conditions by reason of misconduct due to drug abuse.





Service Record contains a partial Administrative Discharge package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19990318 by reason of misconduct due to drug abuse (A) 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 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 properly notified and that his administrative separation board was properly constituted.

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 retention warning, nonjudicial punishment proceedings for violations of Article 86 of the UCMJ, a positive urinalysis for cocaine use and three occasions of being found unfit for duty due to alcohol consumption. 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 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. 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. 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), Change 18, effective 12 Dec 97 to 19 May 99, 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 .

D. 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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