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Docket No. ND01-00414

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

 ex-SA, USN
Docket No. ND01-00414

Applicant’s Request

The application for discharge review, received 010215, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293. Subsequent to the applicant, the applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010829.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  To whom that is reading this,

In January of 2000 I had a leg injury which I suffered off the job at home.  I didn't go to sick call because I thought I would get in trouble, so a friend of mine said that I should go get some pain medication on my own.  Then I wouldn't get in trouble for my leg.  So I went to a Pharmacy in Tijuana and purchased some valiums.  I didn't realize it was as wrong as it was, and if I would have know that I would have gotten discharged for it, I would have beat myself up.  It was a stupid mistake that I hope I can live to forget.  But everyday that goes by I just get angry on how stupidly I conducted myself.
In closing I love my country and the military and wish that you will give me one last chance to redeem myself.  If you wish to ask me any questions you can reach me at (phone number deleted).  Sincerely

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 this application.

Documentation

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

DD Form 214
Character reference dated 26 March 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  990610		Date of Discharge:  000502

Length of Service (years, months, days):

	Active:    00  10  23
	Inactive:  None

Age at Entry:  20			Years Contracted:  4

Education Level:  12			AFQT:  76

Highest Rate:  SA

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/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

991211:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Absent from unit on 24Nov99, (2) Absent from unit on 4Dec99, violation of UCMJ, Article 112: Drunk on duty on 24Nov99.
	Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 30 days.  No indication of appeal in the record.

991211:	Retention Warning:  Advised of deficiency (Absence from organization or place of duty (2 specs) and drunk on duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.   

000211:	NJP for violation of UCMJ, Article 112A (2 specs): (1) Wrongful use of valium and darvon, a schedule 3 and 2 controlled substance on 29Jan00, (2) Wrongful possession and distribution of daron and valium, a scheduled 2 and 3 controlled substance.
	Award: Forfeiture of $502.80 per month for 2 months, restriction and extra duty for 45 days, reduction to AR.  No indication of appeal in the record.

000227:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and drug abuse.

000227:	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 

000301:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and a pattern of misconduct.

000407:	COMPHIBGRU THREE directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 000502 under other than honorable conditions for misconduct due to a pattern of misconduct (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 response to applicant’s issue 1, the Board recognizes that the applicant is remorseful for his misconduct.  While he may feel that his actions were the result of a “stupid mistake”, the record reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The discharge was proper and equitable.  Relief is not warranted concerning this issue.

The applicant’s representative submitted the following as issue 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.  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 one character reference 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 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 “afls10.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:  A6750/A9453/A9221/A9217