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Docket No. ND99-00420

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

 ex-YNSN, USN
Docket No. ND99-00420

Applicant’s Request

The application for discharge review, received 990203, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991206.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.	The characterization of service I received (please refer to Document #3 block 24) was not consistent with all other aspects of my performance and contributions to the United States Navy (please refer to document #1 page 1, paragraph 1.d. and document #14 through #18).  I do not deny the findings as recorded at my Administrative Discharge Board (please refer to Document #1 paragraph 1.e.).
2.	The incident resulting in my unfavorable discharge (please refer to Document #1 page 1, paragraph 1.c.) was a one time incident in 88 months of military service (please refer to Document #1 page 1, paragraph 1.d.).  Alcohol and/or drug related incidences have not been repeated in the over ten years since leaving military service.  My police and driving record are completely clean (please refer to Document #19 and #20).  I have been gainfully employed since leaving military service.  I am raising a family and am a productive and respected member of my community (please refer to Documents #21 through #29).
3.	The MILPERSMAN article used to separate me from the United States Navy allow for service characterization of Honorable , General, and Other Than Honorable (please refer to Document #30 paragraph 1.a). Taking all issues into consideration, I am respectfully requesting an upgrade in the characterization of service for my enlistment period 84DEC21 thru 84DEC29 to reflect a discharge of GENERAL UNDER HONORABLE CONDITIONS.

Documentation

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

Copies of DD Form 214 (2)
Copy of Commanding Officer's recommendation (2pgs)
Copy of Administrative Discharge Board findings (5pgs)
Copies of Enlisted Performance Evaluation Reports (8)
Copy of Report of Enlisted Performance Evaluation (2pgs)
Copy of Certificate of Leadership from National University
Copies of Navy Achievement Medal Certificate (2)
Copy of Certificate of Completion of 50 mile bicycle ride
Copy of Certificate of Excellent Physical Fitness
Copy of Certificate of Completion of Los Angeles Marathon
Copy of Letter of Recognition
Copy of Certificate of Record (Police Record)
Copy of Driving Record
Copies of Character Reference Letters (9)
Copy of MILPERSMAN 3610300

PART II - SUMMARY OF SERVICE

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

	Active:   USN			810707 - 841220	HON
	Inactive: USNR (DEP)	None

Period of Service Under Review:

Date of Enlistment:  841221		Date of Discharge:  881229

Length of Service (years, months, days):

	Active:    04  00  09
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  11			AFQT:  78

Highest Rate:  YN2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (4)	Behavior:  3.65 (4)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NAM, SSDRwb*, HSM 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:
841221:	Reenlisted onboard USS ENTERPRISE (CVN-65) for 4 years.

880516:	Civil conviction at San Diego Municipal Court for driving under the influence of alcohol and or drugs
	Sentence to pay $800 fine by 88 November 18, 180 days in jail, 5 years probation, driver's license revoked for 90 days and to attend SAC/FCP program.
 
880526:	NAVDRUGLAB, report indicated applicant tested positive for cocaine.

880616:	Medical evaluation for drug abuse found the applicant to be a psychologically dependent.

880928:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by your civilian conviction for driving under the influence and misconduct due to drug abuse as evidenced by your wrongful use of cocaine/opiates.

880928:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

881103:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

881115:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

881129:	CNMPC BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 881229 under other than honorable conditions for misconduct due to drug abuse (use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency.  Although there NDRB found the applicant’s service record commendable, the Board did not consider those factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  

Furthermore, the applicant submitted the following as issue 2: (EQUITY ISSUE).  This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, and documentation of community service for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is strongly encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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