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Docket No. ND00-00755

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

 ex-SWCR, USN
Docket No. ND00-00755

Applicant’s Request

The application for discharge review, received 000523, 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 001214.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. 

Documentation

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

Letter from Applicant
Employment Reference Letter (4)
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USMCR (IADT)	910924 - 920328	HON
	Inactive: USMCR (J)		910607 - 910923	COG

Period of Service Under Review:

Date of Enlistment:  930511		Date of Discharge:  950505

Length of Service (years, months, days):

	Active:    01  11  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 months extension) 

Education Level:  12			AFQT:  71

Highest Rate:  SWCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.46 (3)	Behavior:  3.33 (3)		OTA:  3.46

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWAM, SSDR, Rifle Marksman 

Days of Unauthorized Absence:  1 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

930329:	Waiver granted for a time marijuana used in March 1991 for entry into the Aircrew Program-Rescue Swimmer.

930518:	Briefed on Navy's policy on drug and alcohol abuse.

941221:	DAAR indicates drug abuse as a result of self referral, not dependent.

941222:	NJP for violation of UCMJ, Article 134: Wrongfully used with the intent to defraud, month and year decals, which he affixed to his official DOD vehicle decal 941024, Additional Charge: violation of UCMJ Article 86: UA from his unit from 1300, 941208 to, 1130, 941209.
	Award:  Restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

 950119:	NJP for violation of UCMJ, Articles 91, 92 (2 specs), and 117.     Award:  Reduction to E-1,  forfeiture of ½ months pay for 2 months,  restriction for 45 days with 45 days extra duty.  No indication of appeal in the record.

950322:	NJP for violation of UCMJ, Article 107: (3 Specs), Spec 1: With intent to deceive, made a false statement to a POL, to wit: I used LSD, 941219, Spec 2: With intent to deceive, made a false statement to a LCDR, to wit: I used drugs, 941221, Spec 3: With intent to deceive, made a false statement to NCIS, to wit: I never used drugs while in the navy, 950117, violation of UCMJ Article 112a: Wrongful use of hashish in August 1994.
	Award:  Forfeiture of $427.00 per month for 2 months (suspended for 6 months), restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

950324:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

950324:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

950327:	Medical Officer evaluation found applicant not drug or alcohol dependent.

950329:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to the commission of a serious offense.

950420:	BUPERS 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 950505 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The applicant introduced no decisional issues for consideration by the Board.

After a review of the applicant’s service record and other evidence presented to the NDRB, in conjunction with consideration of the factors listed in paragraph 9.3 of reference (a), it was determined that relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 provided three letters of recommendation as documentation of his post-service.  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, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order 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 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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 107, for false official statements, if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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:  A6730/A0100/A9500/A9217