Author: CAP
Last saved by: Department of the Navy
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Docket No. ND00-00783

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

 ex-EMFN, USN
Docket No. ND00-00783

Applicant’s Request

The application for discharge review, received 000531, 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 010104.  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 (verbatim)

1.  I (applicant), write this letter in hopes of my discharge being upgraded.  I disgraced myself, the U.S. Government, and my (now) family of two (single father) from my actions.  I humbly appolojize for my mistake for it has took a horrible toll on my life since separation.  I was young and what I did was wrong because I knew better.  I acted out of shear stupidity being under the influence of alcohol which is not an acceptable excuse for such behavior.  This discharge is denying my decent employment causing me a serious struggle to raise my two children on my own.  I ask God to forgive me and hope you can find it in your heart to do so as well. I got exactly what I deserved for actions some years ago, which I have taken full responsibility for, for quite some time.  I just want to better my family and my life starting over fresh with nothing in my past constantly coming back to haunt me time, after time, after time.  Thanks for your time and patience.  Sincerely,

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)	880616 - 890607	COG

Period of Service Under Review:

Date of Enlistment:  890608		Date of Discharge:  920501

Length of Service (years, months, days):

	Active:    02  10  24
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  31/38

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.53 (3)	Behavior:  3.40 (3)		OTA:  3.47

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM 

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:

890612:	Applicant briefed on Navy's policy on drug and alcohol abuse.

890618:	Retention Warning:  Advised of deficiency (Non-swim qualified.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

911209:	Retention Warning:  Advised of deficiency (Disobey a lawful written order.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920324:	NJP for violation of UCMJ, Article 92: Disobey a lawful order on 4Jan92, violation of UCMJ Article 112A: Wrongful use of marijuana between 29Feb92 and 6Mar92.
	Award: Forfeiture of $501 per month for 2 months, restriction and extra duty for 45 days, reduction to EMFN.  No indication of appeal in the record.

920326:	Medical evaluation for drug abuse found the applicant to be a mixed substance abuser, episodic.  

920327:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all your punishments under the Uniform Code of Military Justice in your current enlistment.

920327:	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.

920401:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

920410:	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 920501 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 service was accurately characterized as having been served under other than honorable conditions.  The applicant was given a retention warning for disobeying a lawful written order.  He then went to CO’s NJP for disobeying a lawful order and wrongful use of marijuana.  No relief 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.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, 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 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/A9319/A9223/A9439