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Docket No. ND00-00672

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

 ex-GMSR, USN
Docket No. ND00-00672

Applicant’s Request

The application for discharge review, received 000502, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed Department of Veterans Affairs as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010111.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (APPLICANT), Enter the US Navy on September 30, 1994, at the ages twenty-three (23). (APPLICANT), was discharge at the of twenty seven (27).  The (APPLICANT) felt he did not have proper or equity counseling to represent him, there were no rehabilitation program was offered to him or rehabilitation transfer. The equity issues applicant has fifty-five months of active service.  The applicant had a compulsory urinalysis testing program that was an isolated incident the applicant first time offense. That incident happen on May 13, 1998, that was during the last period of his enlistment contract.  The applicant is a person and good solider, and his overall service records were good. In conclusion the applicant deserves a recharacterization of his separation to fully Honorable as a matter of equity base on the severity of his punishment find with extra duty fine five hindered dollar 586.00 May 13, 1998, articles #112, regulation. In addition the applicant has an exemplary post service employment history, and is currently employment. I close to finishing my tour of duty, it was unfair to give it was unfair to give me a Bad Discharge, indicates only isolated or minor offenses.  I was discharge without any treatment, I was never involved in selling or trafficking  drugs, aside from the drugs, metric record was satisfactory for fifth five months, I an asking for compassionate for good service.

2.  The applicant in this case (applicant) was separated from the United States Navy on February 16, 1999 under Other Than Honorable Condition for misconduct Separation Code JKK R-E-4 Reentry Code. The applicant comes now before the Board to present the following Matters of Equity to be considered by the Board on the issues of the applicant requests to upgrade the discharge of his separation from the US Navy to fully Honorable. Although the applicant acquiesced in the administrative discharge process the applicant felt he should have been a general Under Honorable Condition due to his fifty-five months of active military and that this was an isolated incident, and this incident happened in the last months of his enlistment. The applicant received the National Defense Service Medal.  In conclusion given the factors in presented by the applicant as well honest and faithful service rendered by the applicant to the US navy during fifty-five months of active military.  The applicant is working and has been continuously active in his community.  We feel upgrade of the applicant's less than Honorable Separation is warranted and we request, whether the applicant deserves to be labeled as a drug abuser for the remainder of his life.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	940930 - 950716	COG

Period of Service Under Review:

Date of Enlistment:  950717		Date of Discharge:  990216

Length of Service (years, months, days):

	Active:    03  07  00
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  72

Highest Rate:  GMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NMCOSR

Days of Unauthorized Absence:  129

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:

980513:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substances.
	Award: Forfeiture of $568.95 per month for 2 months, restriction and extra duty for 30 days, reduction to GMSA.  No indication of appeal in the record.

990204:	NJP for violation of UCMJ, Article 86: Unauthorized absence 0730, 4Sep98 until 0500, 12Jan99 (129 days/apprehended).
	Award: Reduction to GMSR.  No indication of appeal in the record.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990216 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).

In the applicant’s issue 1, the Board found that the applicant’s discharge package is missing from the applicant’s service record, therefore the Board will assume regularity concerning the issue of legal representation on behalf of the applicant.  The applicant must present evidence that his rights were prejudiced.  At this time, the applicant has submitted no documentation, nor could the Board find any evidence of prejudice after a thorough review of the service record.  No relief will be granted based on this issue. 

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is 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.

In response to the applicant’s issue 2, the Board disagrees with the statement that this incident was an “isolated incident.”  The applicant had serious misconduct offenses consisting of drug abuse and an unauthorized absence of 129 days, from which the applicant was apprehended.  The applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

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/A047/A057/A9235