Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND01-00755

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

 ex-RMSN, USN
Docket No. ND01-00755

Applicant’s Request

The application for discharge review, received 010514, 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 listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because in 40 consecutive months of active service I was an outstanding sailor.  Although I did get into trouble when I first joined the Navy, I was only 19, and it was my first time away from home.  After that incident, I went on to graduate at the top of my class, and I was even given Flag duty.  While at my first duty station I was on a fast track to the top of my field, and I firmly believe my career would have only continued up if I had not gotten into a car accident and been taken out of my rate.

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contentions as set forth on the application by the appellant of an upgrade of his current Under Other Than Honorable Conditions discharge to that of General Under Honorable Conditions.
The record reflects the FSM served in the United States Navy from July 24, 1995 until her discharge on October 26, 1999. The FSM requests equitable relief in the manner as noted above, requesting a review of the evidence on file to include that submitted denoting his outstanding post service conduct, as noted by statements from civilian authorities, family and friends.  But also with consideration to her good active service as denoted by receipt of the Good Conduct medal on January 19, 1999. As the representative this service requests consideration be given to equitable relief in the form of a General Under Honorable Conditions for this FSM, with consideration to SECNAVINST 5420.174C 9.3 Enclosure (1). We ask for the Board's careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	950623 - 950723	COG

Period of Service Under Review:

Date of Enlistment:  950724		Date of Discharge:  991026

Length of Service (years, months, days):

	Active:    04  03  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  79

Highest Rate:  RM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.28 (7)	Behavior:  3.00 (7)		OTA:  3.13

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, OSR, Flag Letter of Commendation, GCM

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

960119:	NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a petty officer on 24Nov95, violation of UCMJ, Article 92 (2 specs): Failure to obey order or regulation on 24Nov95 and 9Dec95, violation of UCMJ, Article 116: Breach of peace by shouting in a public place on 24Nov95, violation of UCMJ, Article 134 (2 specs): (1) Drunk and disorderly, (2) Wrongfully us another's military I.D. with intent to deceive on 9Dec95.
	Award: Forfeiture of $199 per month for 7 days, restriction and extra duty for 14 days, reduction to RMSR.  No indication of appeal in the record.

980819:	Copy of NIS report found on microfiche.

990401:	Copy of NIS report found on microfiche.

990412:	NAVDRUGLAB, Jacksonville, FL reports applicant urine sample, received 990408, tested positive for THC.

990423:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: marijuana on 2Apr99.
	Award: Forfeiture of $612.90 per month for 1 month, restriction and extra duty for 30 days, reduction to RMSN.  Appealed  990513.  Appeal denied 990630.

xxxxxx:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.

990428:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse and misconduct due to Commission of a serious offense as evidenced by your Commanding Officer's nonjudicial punishments of 19 January 1996 and 23 April 1999.

990428:	Applicant advised of his rights and having consulted with counsel certified under UCMJ, Article 27B, elected to appear before an Administrative Discharge Board.

990727:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under Other Than Honorable conditions.

990920:	Commanding officer recommended discharge under General conditions by reason of misconduct due to Commission of a serious offense and misconduct due to Drug abuse (Use).

991007:	CNMPC 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 991026 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).

Issues 1 and 2.  The applicant states that she served 40 consecutive months as an outstanding sailor and that her career would have continued on the fast track if she hadn’t been involved in a car accident and taken out of her rate.  Additionally, she requests equitable relief based on outstanding post-service conduct.  The applicant was discharged for drug abuse.  Additional misconduct included an NJP for violation of UCMJ, Article 91 (insubordinate conduct toward a petty officer), Article 92 (2 specs:  failure to obey a lawful order), Article 116 (breach of peace) and Article 134 (2 specs:  drunk and disorderly and wrongfully using another’s I.D. with intent to deceive).  A discharge characterization of Other Than Honorable for violation of UCMJ, Article 112A was determined by the Board to be proper and equitable, based on the circumstances and official records that apply to this case.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, Article 1910-146 (formerly 3630620), Separation 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 "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:  A6600/A9217/A9301/A9439/A9223/A9319/A9221