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

Docket No. ND01-00905

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

ex-BMSA, USN
Docket No. ND01-00905

Applicant’s Request

The application for discharge review, received 010703, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of Government.  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 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 and reason for 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

1.  My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.

2.  I have never been in trouble with the authorities or disrespectful.

Documentation

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

Copy of Enlisted Performance Record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	921014 - 921123	COG

Period of Service Under Review:

Date of Enlistment:  921124		Date of Discharge:  960802

Length of Service (years, months, days):

	Active:    03  08  09
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  Unknown		AFQT:  Unknown

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.90 (2)	Behavior:  3.80 (2)		OTA:  3.90

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BER, AFEM, SASM (2), SSDR, GCM

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 3630620.

Chronological Listing of Significant Service Events:

950818:	Applicant to unauthorized absence 0715, 18Aug95.

950820:	Applicant from unauthorized absence 0700, 20Aug95 (1 day/surrendered).

960701:	NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance on 11Jun96.
	Award: Forfeiture of $490 per month for 2 months, restriction and extra duty for 45 days, reduction to BMSA.  No indication of appeal in the record.

960701:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all drug incidents in his current enlistment.

960701:	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.

960703:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent. 

960703:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

960711:	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 960802 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).

The applicant’s first issue states:  “My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.”  The Board finds the applicant’s Other Than Honorable discharge and reason for discharge accurately characterizes his service.  The applicant’s assertion ignores the seriousness of the offense.  The applicant was found guilty at NJP of a serious military offense, violation of UCMJ Article 112A, an offense for which a punitive discharge may be awarded at Court Martial.  Relief is not warranted.

The applicant’s second issue states:  “I have never been in trouble with the authorities or disrespectful.”  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  There is no law or regulation that allows for an unfavorable discharge to 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 existed during the period of enlistment in question.  No such error existed in this case.  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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate that he is drug free, has accomplished some form of community service, has an employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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 "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/A9241/A9217/A9223/A9221