DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW
DECISIONAL DOCUMENT


FOR OFFICIAL USE ONLY


ex-AKAN, USN
Docket No. ND06-00059

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 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 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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on an attached letter:

“Dear Navy Discharge Review Board,
The reasons for my request for a discharge upgrade are as follows; during the time of my misconduct there were several issues seriously affecting my personal life. At the time the ship I was stationed aboard the USS Abraham Lincoln CVN-72 had just come off a deployment that was extended nearly four months, making it almost 10 months instead of six. During the deployment we were involved in Operation Southern Watch, Operation Enduring Freedom, and also Operation Iraqi Freedom. On top of the adversities of being on a stressful deployment, in December of 2002 I received the news that my only parent my mother was diagnosed with lung cancer. Then when I returned home from deployment I ended a two year personal relationship. I feel this isolated incident it no an accurate reflection of my service during my enlistment. I’ve included my personal Evals from 2002, and also 2003 as verification of my personnel performance. As you can see from the Evals prior to this period of difficulties I served honorably without incident and faired well in my performance ratings. I took the urine analysis l0Jun2003 the day I returned from a two week leave period. I was notified of the results in until 28Jul2003. In the first week of July 2003 I reported to command DAPA and was in the process of seeking help for my problems. After I was notified of the results of the urine analysis I was no longer offered any assistance and immediately discharged from the Navy.
One month after my discharge I entered and successfully completed a one year faith based treatment program. I wasn’t fully aware of the impact of an Other than Honorable Discharge until after I completed treatment and contact the Veterans Association to see if a was eligible for any assistance. I know that I made a huge mistake by the choices I made during that time in 2003. I hope that you would consider this upgrade so I can make up for some of the losses caused by my actions. Also so that I may finish getting my life back on the right track and better my future.

Thank you,

N_ S. T_ (Applicant)”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Evaluation Report & Counseling Record for period ending June 15, 2003 (2 pages)
Evaluation Report & Counseling Record for period ending July 16, 2002 (2 pages)
Certificate of Completion, Christian Discipleship Program, dtd September 20, 2004

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19990313 – 19990412      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 19990413             Date of Discharge: 20030808

Length of Service (years, months, days):

         Active: 04 03 24
         Inactive: None

Time Lost During This Period :

         Unauthorized absence: 02 days
         Confinement:              None

Age at Entry: 18

Years Contracted: 4 (12 month extension)

Education Level: 11                                 AFQT: 55

Highest Rate: AK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.2 (5)              Behavior: 2.8 (5)                 OTA: 3. 02

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): First Good Conduct Medal Awarded for Period Ending on 02APR12, Navy Unit Commendation, Meritorious Unit Commendation, Coast Guard Unit Commendation, Battle “E” Ribbon, National Defense Service Medal, Armed Forces Expeditionary Medal, Seas Service Deployment Ribbon (2).

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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 :

990309:  Pre-service waiver granted for non-minor misdemeanor.

990313:  Applicant briefed on Navy's policy of drug and alcohol abuse.

030709:  Applicant to unauthorized absence at 0730 on 030709.

030711:  Applicant from unauthorized absence at 0730 on 030711.

030718:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 030714, tested positive for cocaine and THC.

030728:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance. Specification 1: In that Aviation Storekeeper Third Class N_ S. T_ (Applicant), U. S. Navy, USS ABRAHAM LINCOLN, on active duty, did, at or near Tacoma, Washington on or about 16 June 2003, wrongfully use cocaine. Specification 2: In that Aviation Storekeeper Third Class N_ S. T_ (Applicant), U. S. Navy, USS ABRAHAM LINCOLN, on active duty, did, at or near Tacoma, Washington on or about 16 June 2003, wrongfully use marijuana. Award: Forfeiture of $794.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

030728:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse. [Least favorable characterization of service unreadable]

030728:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030728:  Commanding Officer, USS ABRAHAM LINCOLN, made a recommendation to Commanding Officer, COMCRUDESGRU THREE, regarding Applicant’s administrative processing due to drug abuse.

030729:  COMCRUDESGRU THREE, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.
Service Record contains a partial Administrative Discharge package.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030808 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 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 invoked the presumption of regularity. Specifically, the Board presumed that when the Applicant was notified of his Commanding Officer’s intention to recommend his separation, he was also notified that the resulting character of service could be under other than honorable conditions.

The Applicant contends that his discharge is inequitable because the “isolated incident” is not an accurate reflection of his service. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. 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 nonjudicial punishment proceedings for violations of Article 112a of the UCMJ. Violations of Article 112a of the UCMJ are considered serious offenses. In addition to the Applicant’s drug abuse, the Applicant had a period of unauthorized absence which was not adjudicated. 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 Applicant states he sought treatment for his “problems” the first week of July 2003, prior to being notified of his positive urinalysis, but after providing a sample for urinalysis. The Board evaluated the Applicant’s statement as an assertion that the Applicant was a “self-referral” for drug abuse. Regulations stipulate that any member who has been notified of the requirement to submit, or actually has submitted, a urine sample for analysis under any testing premise ineligible to participate in the self-referral program until the results of his current urinalysis has been received by the command and any potential disciplinary or administrative actions have been initiated. The Board found the Applicant’s alleged request for assistance therefore did not constitute self-referral in the context of restricting the Applicant from being discharged under other than honorable conditions by reason of misconduct due to drug abuse. Relief denied.

The Applicant contends that once he was notified of his positive urinalysis, he was “no longer offered any assistance.” The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use. The Applicant’s allegations, that he was denied assistance and counseling, do not refute the presumption of regularity in this case. 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.

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. The Applicant provided his certificate of completion for rehabilitation. Examples of additional documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, additional credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient 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.

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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. 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.

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