Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND00-00241

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

ex-MMFN, USN
Docket No. ND00-00241

Applicant’s Request

The application for discharge review, received 991214, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000803.  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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

The NDRB did note an administrative error on the original DD Form 214.  Block 25, Separation Authority should read:  “MILPERSMAN Article 1910-146” vice “MILPERSMAN, Article 3630620”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service record is sufficient to warrant release under honorable conditions.

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.

Documentation

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

Copy of DD Form 214 (2 copies)
Nine pages from applicant's service record
Four copies of Evaluation Report and Counseling Record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960415 - 960514	COG

Period of Service Under Review:

Date of Enlistment:  960515		Date of Discharge:  990308

Length of Service (years, months, days):

	Active:    02  09  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  32

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)*		Behavior:  2.75 (4)*	OTA:  3.76*	5.0 EVALS

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC, NER, AFEM, SSDR

Days of Unauthorized Absence:  None

*Evaluations extracted from supporting documents from applicant.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

970128:	NJP for violation of UCMJ, Article 121: Larceny, violation of UCMJ Article 134: Drunkenness.
	Award:  Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

981222:	NAVDRUGLAB, Jacksonville, FL reported urine sample received 981210 tested positive for cocaine.

990115:	NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana.
	Award:  Forfeiture of $589 per month for 2 months, reduction to MMFN.  No indication of appeal in the record.  [Extracted from CO's letter dated July 20, 1999.]

990121:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by CO's NJP held on 15 January 1999.

990121:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990224:	COMNAVSURFLANT Norfolk, VA directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

990720:	Commanding officer recommended 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 990308 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 first issue states:  “(Equity Issue) His violations of the UCMJ notwithstanding, this former member opines that his otherwise creditable service record is sufficient to warrant release under honorable conditions.”  The NDRB found the applicant’s service was marred by 2 NJP’s: one for violation of UCMJ Article 121(Larceny) and Article 134(Drunkenness) as well as Article 112a(Wrongful use of controlled substance).  The NDRB found the significant aspects of the applicant’s misconduct far outweigh his otherwise credible service.  Relief is not warranted.

The applicant’s second issue states:  “(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 following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The applicant must be aware that 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, may be considered by the NDRB.  The applicant provided no documentation to support this issue.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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 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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  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.
INDEX:  A6600/A9221/A9223/A9439