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Docket No. ND00-00453

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

 ex-EMFR, USN
Docket No. ND00-00453

Applicant’s Request

The application for discharge review, received 000223, requested that the characterization of service on the discharge be changed to honorable.  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 001005.  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 3630620.

The NDRB did note an administrative error on the original DD Form 214.  Block 25, Separation Authority should read:  “NAVMILPERSMAN, Article 3630620” vice “MILPERSMAN 3630600”, Block 26, Separation Code should read: “HKK” vice “HKQ”.  The original DD Form 214 should be corrected or reissued as appropriate. 

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I received a general discharge "Under Honorable Conditions" for UA.  Due to oversleeping and underage drinking due to drinking the night before a muster and still having alcohol in my system.  While I was being processed out, I received an additional charge [Art. 92, UCMJ, Illicit substance] substantiated only by the word of a sailor who was being discharged and threatened with the brig in exchange for names. My discharge was then changed to "Other-Than-Honorable Conditions."

2.  I have, subsequent to discharge; worked every day, maintained employment, entered college and will graduate in 2000 or May 2001 with a B.S. in physics and a G.P.A. greater than 3.0.  I vote regularly, abide by laws, work fulltime, go to school full-time, work as a teaching assistant and tutor in my spare time.  I live on my own, and I am engaged and will be married next May.

Documentation

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

Copy of college transcripts
Character reference dated September 9, 1999
Character reference dated September 16, 1999
Copy of applicant's DD Form 214
Copy of applicant's resume
Character reference dated February 20, 2000
Character reference dated February 25, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   USN			000000 - 000000	HON
	Inactive: USNR (DEP)	960524 - 960624	COG

Period of Service Under Review:

Date of Enlistment:  960625		Date of Discharge:  970519

Length of Service (years, months, days):

	Active:    00  10  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  98

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

970410:	NJP for violation of UCMJ, Article 86: Fail to go at the time prescribed to appointed place of duty on 0700-0900, 1Apr97.
	Award:  Correctional custody for 30 days, reduction to EMFN.  No indication of appeal in the record.

970424:	NJP for violation of UCMJ, Article 92 (3 specs): (1) Violated a lawful general regulation on 14Ap97, by wrongfully consuming alcohol under the age of twenty-one, (2) Failed to obey lawful general regulation on 15Apr97, by having alcohol in his BEQ room, (3) Violate a lawful general regulation by patronizing an establishment that was placed off limits; violation of UCMJ, Article 134: Wrongful previous overindulgence in intoxicating liquor or drugs, incapacitated for the proper performance of his duties on 15Apr97.
	Award:  Forfeiture of $505 per month for 2 months, restriction and extra duty for 30 days, reduction to EMFA.  No indication of appeal in the record.

970502:	NJP for violation of UCMJ, Article 92: Violate a general regulation, by wrongfully consuming alcohol under the age of twenty-one between 1Jan97 and 31Jan97; violation of UCMJ Article 112A: Wrongfully use lysergic acid diethylamide between 1Jan97 and 31Jan97.
	Award:  Forfeiture of $450 per month for 2 months, restriction and extra duty for 45 days, reduction to EMFR.  No indication of appeal in the record.

970507:	Drug and Alcohol Abuse Report: Hallucinogens (LSD) abuse, 1May97, ashore off duty.  CAAC recommended separate not via VA hospital.  Clinical psychologist found applicant not dependent and recommended separate not via VA hospital.  Commanding officer recommended separate not via VA hospital.  Comments:  EMFR (applicant) was found guilty of using a controlled substance (LSD).  CAAC and Branch Medical evaluated EMFR (applicant) as neither a drug abuser nor drug dependent.  Due to current CNO zero drug tolerance policy, service member will be processed for administrative separation.

970514:	Commander, Naval Training Center, Orlando, FL directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970519 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:  “I received a general discharge "Under Honorable Conditions" for UA.  Due to oversleeping and underage drinking due to drinking the night before a muster and still having alcohol in my system.  While I was being processed out, I received an additional charge [Art. 92, UCMJ, Illicit substance] substantiated only by the word of a sailor who was being discharged and threatened with the brig in exchange for names. My discharge was then changed to "Other-Than-Honorable Conditions."”  The NDRB found that the applicant was found guilty at NJP on two separate occasions of offenses that if tried at Court Martial could result in punitive discharges.  The applicant clearly established a pattern of misconduct in his 10 months of service that warranted a discharge under other than honorable conditions.  The NDRB found no impropriety in the applicant’s discharge.  Relief is denied.

The applicant’s second issue states:  “I have, subsequent to discharge; worked every day, maintained employment, entered college and will graduate in 2000 or May 2001 with a B.S. in physics and a G.P.A. greater than 3.0.  I vote regularly, abide by laws, work fulltime, go to school full-time, work as a teaching assistant and tutor in my spare time.  I live on my own, and I am engaged and will be married next May.”  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.  Relief is not warranted.

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.  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/A9229/A9319/A9217/