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NAVY | DRB | 2006_Navy | ND0600793
Original file (ND0600793.rtf) Auto-classification: Denied


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

ex-OSSN, USN
Docket No. ND06-00793

Applicant’s Request
The application for discharge review was received on 20060519 . 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 20070614 . 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 General (Under Honorable Conditions) by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Equity – Did not use drugs/discharge not Applicant’s fault
 Equity – In service
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Member 4)
 Request for Retest of Urine Sample , dtd February 2, 2 005
 Fax Cover Page from Northwest Toxicology, dtd January 21, 2005
Test Results Report from Northwest Toxicology
 Frequently Asked Questioned About Hair Testing (5 pgs)
Statement from Applicant
Statement of Explanation 72 Hours Prior to Urine Test
Investigative Notes, dtd April 1, 2005
Permissive Authorization for Search and Seizure
Excerpts from Service Record (5 pgs)
 Potential Character Witness Questionnaire from B_ B_ (2 pgs)
Potential Character Witness Questionnaire from T_ B_ (2 pgs)
Potential Character Witness Questionnaire from N_ W_ (2 pgs)
Potential Character Witness Questionnaire from D_ G_ (2 pgs)
Potential Character Witness Questionnaire from S_ C_ (2 pgs)
Potential Character Witness Questionnaire from A_ U_ (2 pgs)
 Potential Character Witness Questionnaire from E _ P _ (2 pgs)
 Potential Character Witness Questionnaire from J_ F_ (2 pgs)
Potential Character Witness Questionnaire from D_ B_ (2 pgs)
 Potential Character Witness Questionnaire from L_ R_ (2 pgs)
 Potential Character Witness Questionnaire from B_ S_ (2 pgs)
Potential Character Witness Questionnaire from P_ D_ (2 pgs)
 Potential Character Witness Questionnaire from R_ P_ (2 pgs)
Letter from C_ M_, dtd May 12, 2005
 Voluntary Statement from S_ P_ S_, dtd Febr uary 24, 2005
Evaluation Report & Counseling Records (8 pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010629 - 20010926       COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20010927              Date of Discharge: 20050623

Length of Service (years, months, days):

          Active: 0 3 0 8 27
         Inactive: None

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

Age at Entry: 1 7

Years Contracted: 4 ( 12 -month extension)

Education Level: 12                                 AFQT: 33

Highest Rate: OS3

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 5 ( 4 )              Behavior: 2.75 ( 4 )                          OTA: 3.21

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Good Conduct Medal (1 st Award for period ending 23SEP04), National Defense Service Medal, Navy “E” Award, Sea Service Deployment Ribbon , Navy Unit Commendation; Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal .


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

GENERAL (UNDER HONORABLE CONDITIONS)/ MISCONDUCT (DRUG ABUSE), authority: MILPERSMAN, Article 1910-146, formerly 3630620 .
Chronological Listing of Significant Service Events :

0 50428 :  NJP for violation of UCMJ, Article 112a : Wrongful use, possession, ECT, of controlled substance, to wit: cocaine on or before 050105.
          Award: Forfeiture of $ 870.0 0 pay per month for 2 month s , restriction and extra duty for 45 days, reduction to E- 3 . No indication of appeal in the record.
050623:  DD Form 214: Applicant discharged with a general under honorable conditions by reason of misconduct due to drug abuse, authority MILPERSMAN 1910-146.


Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050623 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under 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 argues that his discharge was inequitable because he did not use drugs, and he believes the positive urinalysis was an error. 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. Applicant’s statements alone do not overcome the government’s presumption of regularity. There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that the urinalysis result was an error. Relief denied

The Applicant argues that his characterization should be upgraded to honorable because of the quality of his overall service. There is credible evidence in the record that the Applicant used illegal drugs. 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. 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 the characterization of his service proper and equitable. Relief denied.

The Applicant requests upgrade in order to obtain educational benefits and because he needs a better job to “support” his “family.” 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. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective
29 April 2005 until Present, Article 1910-146, 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 (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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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