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NAVY | DRB | 2006_Navy | ND0600305
Original file (ND0600305.rtf) Auto-classification: Denied


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

ex-YNSN, USN
Docket No. ND06-00305

Applicant’s Request
The application for discharge review was received on 20051215 . 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 20061025 . After a thorough review of the 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:

“ The nature of my discharge prevents me from utilizing the G.I. Bill that I invested in. I’ d seriously like to complete my education. I am a different person now and I’d like my past to stop haunting and hindering me. ”
Documentation
Only the service record was 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)     19921204 - 19921213       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19921214              Date of Discharge: 19961213

Length of Service (years, months, days):

          Active: 0 4 00 00
         Inactive: None

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

Age at Entry: 22

Years Contracted: 4

Education Level: 12                                 AFQT: 73

Highest Rate: YN3

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (1)              Behavior: 5.0 (1)                 OTA: 4 .00 (5.0 e val uation system)
 Performance: 3 . 8 ( 5 )               Behavior: 3 . 9 ( 5 )                  OTA: 3 . 92 (4.0 e val uation system)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Medal, National Defense Service Medal, 2 Navy “E” Awards, Joint Service Achievement Medal, Armed Forces Expeditionary Medal


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

960621:  Department of the Air Force, Armstrong Drug Testing Laboratory, Brook AFB, Texas, report ed the urine specimen submitted by the following individual tested positive for Cocaine at a level of 42175 ng/ml. The test date was 960518 and the test category was CONSENT.
960813:  Department of the Air Force, Air Force Office of Special Investigations Report of Investigation.
961011 :  NJP for violation of UCMJ, Article 112a : Wrongfully use of cocaine .
 Award: Forfeiture of $ 558. 00 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 3 . Appealed 961011 .
96102 9 :   Applicant notified of intended recommendation for discharge with least favorable characterization as under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a nonjudicial punishment for the wrongful use of cocaine.

961029:  Appeal of NJP denied.
961113 :  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board and obtain copies of documents supporting the basis for the proposed separation .
961203 :  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 , that such misconduct warranted separation, recommended separation be suspended for 3 months, if separated recommended discharge under other than honorable conditions.
961204 :  Command er, TWENTIETH Naval Construction Regiment, Gulfport recommended BUPERS that Applicant be discharge d under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a nonjudicial punishment for the wrongful use of cocaine . Commanding Officer’s comments : “ YNSN M_ (Applicant) has been a very good worker during the year he has been at this command. He is also in a very unfortunate situation concerning his health. However, neither his medical condition nor his work performance can overcome the deliberate wrongful use of drug. Prior to YNSN M_’s nonjudicial punishment, he submitted a written statement to me (Exhibit 6) stating he used marijuana and cocaine occasionally in conjunction with alcohol. His psychiatrist also submitted a statement to the board (Exhibit F), stating that YNSN M_’s use may be attempts at suicide. That exhibit would appear to warrant processing for personality disorder as well as misconduct due to drug abuse but the letter was not addressed to this command and its existence was not know until the time of the board. I can sympathize with the seriousness of YNSN M_’s health problems and appreciate the work he has done while at this command, but I cannot overlook the illicit drug use and must disagree with the board’s recommendation for a suspended discharge. Drug abuse is a serious problem in the Navy and cannot be condoned under any circumstances. Consistent discipline and swift discharge for drug abuse is critical to maintaining good order and discipline within the naval service and this command. Accordingly, I strongly recommend that YNSN M_ be separated from the naval service with a discharge characterization as under other than honorable conditions. Also note that YNSN M_’s EAOS is 961213 and expeditious processing of this administrative separation package is imperative .”
961209 :  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

961211:  Applicant offered in-patient treatment via a Level III Navy Alcohol/Drug Rehabilitation Center. Applicant understood his right to Level III treatment and elected to decline said treatment.
961213:  DD Form 214: Applicant discharged Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19961213 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

While the Board respects the Applicant’s claim that he is a different person, it is worth reminding the Applicant that his record of service was not honorable. There is credible evidence that the Applicant used a controlled substance, which warrants mandatory processing for separation from the service. The Applicant’s records also contain nonjudicial punishment proceedings on 19961011 for violation of UCMJ Article 112a Wrongful use of controlled substance (cocaine). These negative aspects served to inform the characterization of Under Other Than Honorable Conditions, which the Applicant received. The Applicant is advised that while 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle are examples of documentation that should have been provided to receive consideration for relief based on post-service conduct. At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated discharge. No relief is granted on this basis.

The Applicant is advised that 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 or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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 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 .

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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