Search Decisions

Decision Text

NAVY | DRB | 2006_Navy | ND0600210
Original file (ND0600210.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND06-00210

Applicant’s Request
The application for discharge review was received on 20051116. 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 20060926 . 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

 Applicant’s issues, as stated on the application:

“I have a 2 year old daughter to take care of. it has been hard to get a decent job making the kind of money I need. I hate for her to not live the way she deserves over a mistake her father made. I was discharged for the in urinalysis. I went through a lot in Norfolk. I was carjacked at gunpoint. my best friend for 7 years died and I couldn’t go to the funeral. I had gotten divorced and wasn’t seeing my daughter. my grandmother died. I didn’t feel like I could go on. there is nothing I can really say to change what I’ve done. I let down my father who retired after 23 years in the navy. there is no excuse for what I did and I was wrong. I just hope you can understand what I was going through and maybe you can help me by changing discharge. if not for me, for a 2 year old girl .”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None
Period of Service Under Review :
Date of Enlistment: 20020418             Date of Discharge: 20050204

 Length of Service (years, months, days):

          Active: 02 11 24
         Inactive: 00 09 22

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

 Age at Entry: 17 (Parental Consent)

 Years Contracted: 8

Education Level: 12                                 AFQT: 53

 Highest Rate: HN

 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): National Defense Service Medal

* Not Available


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 :

030211:  Wavier for two dependents granted.
030211:  Commenced active duty for a period of 4 years (12-month extension).
0412 16 :  NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc. of controlled substances.
 Award: Forfeiture of $300.00 pay per month for 2 months, extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
050204:  DD Form 214: Applicant discharged Under Other Than Honorable Con ditions by reason of misconduct due to drug abuse (Sep Code HKK).


Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050204 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 the Applicant was properly notified of his Commanding Officer’s intent to administratively process the Applicant for separation, that the Applicant was afforded all rights which he elected at notification and that the Applicant’s discharge was directed by proper authority.

The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Mandatory processing for separation is required for sailors who abuse illegal drugs. The Applicant’s use of illegal drugs, a violation of Article 112a of the UCMJ, is considered the commission of a serious offense. Violations of Article 112a of the UCMJ are punishable by punitive discharge if a adjudged as part of the sentence upon conviction at a special or general court-martial. Separation under these conditions generally results in characterization of service under other than honorable conditions. While the Applicant implies that his discharge is inequitable because of the multitude of personal problems that he experienced which precipitated his drug abuse, 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 is not warranted.

The Applicant implies that his discharge is inequitable because it is hard for him to get a “decent job” in order to provide for his daughter. 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 on this basis would be inappropriate.

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. 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 112, 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

Similar Decisions

  • NAVY | DRB | 2000_Navy | ND00-00474

    Original file (ND00-00474.rtf) Auto-classification: Denied

    ND00-00474 Applicant’s Request The application for discharge review, received 000301, requested that the characterization of service on the discharge be changed to honorable. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).In response to the applicant’s issue wherein he states that he has “turned his life around”, there is no law or regulation that provides for...

  • NAVY | DRB | 2006_Navy | ND0600450

    Original file (ND0600450.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. ” 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

  • NAVY | DRB | 2005_Navy | ND0500739

    Original file (ND0500739.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). As of this time, the Applicant has not provided any post-service documentation for the Board to consider. 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

  • NAVY | DRB | 2003_Navy | ND03-00332

    Original file (ND03-00332.rtf) Auto-classification: Denied

    ND03-00332 Applicant’s Request The application for discharge review was received on 20021217. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. You may view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.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:

  • NAVY | DRB | 2004_Navy | ND04-00743

    Original file (ND04-00743.rtf) Auto-classification: Denied

    “To whom this letter concerns,I was discharged from the Navy in June 2003 with an OTH because I failed a drug test for ecstasy. I do have specific reason for attempting to get my OTH to a general discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.

  • NAVY | DRB | 1999_Navy | ND99-00984

    Original file (ND99-00984.rtf) Auto-classification: Denied

    Applicant failed to report in compliance with such orders and is on unauthorized absence from that time and date. 920826: Message to BUPERS requesting authority to discharge applicant in absentia effective 10Jun91 in the best interest of the service. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).In response to applicant’s issue 1, the Board found nothing in...

  • NAVY | DRB | 2006_Navy | ND0600662

    Original file (ND0600662.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Applicant’s DD Form 214 (Member 4)Applicant’s Statement PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Inactive: USNR (DEP) 20030926 - 20031026 COG Active: None...

  • NAVY | DRB | 2005_Navy | ND0500687

    Original file (ND0500687.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. 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. The NDRB is authorized to consider post-service factors in the...

  • NAVY | DRB | 2005_Navy | ND0500094

    Original file (ND0500094.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable and uncharacterized RE-2. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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.

  • NAVY | DRB | 2004_Navy | ND04-00210

    Original file (ND04-00210.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to honorable. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20011023 under other than honorable conditions for misconduct due to drug abuse (A). The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.