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NAVY | DRB | 2006_Navy | ND0600482
Original file (ND0600482.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND06-00482

Applicant’s Request
The application for discharge review was received on 20060213 . 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 20061214 . 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.
The NDRB did note administrative error(s) on the original DD Form 214. Block 12c , Net Active Service This Period , should read : “ 01 06 22 ,” and block 24, Character of Service, should read: Under Other Than Honorable Conditions.” The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Equity – Post Service

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference ltr from D_ W. M_, Ed.D., Executive Director, Teen Challenge of the Midwest, dtd February 1, 2006
 Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19900928 - 19910714       COG
          Active: USA -NG    19900306 – 19900203      UNCHAR

Period of Service Under Review :
Date of Enlistment: 19910715              Date of Discharge: 19930206

Length of Service (years, months, days):

         Active: 0 1 0 6 22 (Does not exclude lost time.)
         Inactive: None

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

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 49

Highest Rate: MMFA

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 .0 ( 1 )              Behavior: 2 . 8 ( 1 )                          OTA: 2 . 8

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : National Defense Service Medal July 91, Southwest Asia Service Medal w/Bronze Star


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

910719 :  Applicant briefed on Navy's policy of drug and alcohol abuse.

920515 :  NJP for violation of UCMJ, Article 92 : Wrongfully possess ID Card .
Violation of UCMJ, Article 134: Drunk and disorderly.
 Award: Forfeiture of $ 3 00 .00 pay per month for 1 month, restriction and extra duty for 30 days . No indication of appeal in the record.
920528 :  Retention Warning: Advised of deficiency ( Establishing a record of Minor Disciplinary Infractions and a pattern of misconduct ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
921030:  Letter from Commanding Officer, Naval Alcohol Rehabilitation Center, dtd 921030.
         Subject member was refused treatment at this facility and returned to your command this date for the following reasons:
         Member terminated from treatment because of screening positive for THC.
921120:  NJP for violation of UCMJ, Article 112a: Wrongfully use of a controlled substance to wit: marijuana
         Award: Forfeiture of $392.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1. No indication of appeal in the record.
921122 :  Applicant notified of intended recommendation for discharge with the characterization of service as under other than honorable conditions by reason of misconduct due to drugs abuse.

921123 :  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights .

921201:  Medical Officer completed a drug dependency screening and Applicant was diagnosed as neither psychologically nor physiologically drug dependent. Applicant was evaluated as alcohol dependent by a clinical psychiatrist on 921001.
921202 :  Commanding Officer, USS SAIPAN , recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO s NJP held on 921120. Commanding Officer’s comments: “ SNM (Applicant) signed statement of awareness on 921123 and acknowledged understanding of his rights. SNM demonstrates no potential for further service in the United States Navy. Due to his recent drug abuse, SNM is a detriment to good order and discipline. I strongly recommend that he be discharged under other than honorable conditions as soon as possible. ”

921210 :  BUPERS, authorized the Applicant's discharge with under other than honorable conditions characterization by reason of misconduct due to drug abuse.

921217:  Applicant accepted treatment at a Veteran’s Administration Hospital.
930206:  The Applicant was discharged.
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 19930206 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). The Board presumed regularity in the conduct of governmental affairs (E).
The Applicant requests that the characterization of his service be upgraded to general under honorable conditions. Despite a servicemember’s record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. Mandatory processing for separation is required for Sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. There is credible evidence in the record that the Applicant used illegal drugs. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable. Relief denied.

The Applicant provided evidence of substance abuse treatment to show post service accomplishments in support of his upgrade. 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 may 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 sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. Relief denied.

The Applicant also stated that he wanted to obtain Veteran’s benefits. 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 and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, 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 of the propriety and equity of the discharge.

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. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 (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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