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Docket No. ND01-01127

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

 ex-ITSA, USN
Docket No. ND01-01127

Applicant’s Request

The application for discharge review, received 010830, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The applicant listed American Legion as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, she was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 020328.  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: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) Her violation of the UCMJ notwithstanding, this former member opines that her overall service record warrants a fully honorable discharge.

2.  (Equity Issue) This former member furthers requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, is assessing the merits of this application.

Documentation

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

Copy of DD Form 214
Copy of NJP's (2pgs)
Copy of Letter of Appreciation
Copy of Certificate of Appointment to Information System Technician Third Class
Copy of Letter of Commendation
Copies of Certificate of Commendation (Outstanding Performance) (2)
Reference Letter from HM2 M____ R. H_____
Reference Letter from IT1 K___ A. S____, USN
Reference Letter from ITSN B____ T. L____
Reference Letter from IT1 S____ W_____
Reference Letter from ITC G___ M. W____
Character Reference Letter from LT. H____ G___, JR
Reference Letter from CWO4 R.D. W_____ (2pgs) 
Employment Reference Letter from Store Manager M___ S____
Reference Letter from IT1 (SW) S____ W_____
Reference Letter from G___ T. L___, III
Character Reference Letter from ET3 C____ S_____
Reference Letter from R____ W____ (CWO4) Ret
Character Reference Letter from CWO2 G_____ M. W____ 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	971204 - 980302	COG

Period of Service Under Review:

Date of Enlistment:  980303		Date of Discharge:  010124

Length of Service (years, months, days):

	Active:    02  10  22
	Inactive:  None

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

Education Level:  12			AFQT:  46

Highest Rate:  ITSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  1.66 (3)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

990402:	Record of Counseling: Military Performance.
 
990402:	Record of Counseling: PQS Qualifications.

990501:	Record of Counseling: Behavior, Tardiness.
 
990607:	Record of Counseling: Behavior, Traffic Violations.

990805:	Record of Counseling: Tardiness.

990916:	Record of Counseling: Military Performance

000406:	Record of Counseling: Military Performance.

000517:	Record of Counseling: Job Performance.

000612:	NJP for violation of UCMJ, Article 92: Dereliction of duty.
Award:  Extra duty for 14 days.  No indication of appeal in the record.
 
000710:	Record of Counseling: Military Performance.

000831:	Record of Counseling: Military Appearance/Bearing, Professional
 Performance, Watch Standing, Military Behavior, Responsibilities. 

000920:	NJP for violation of UCMJ, Article 112A: Wrongful use of controlled substances) In that ITSN B_____ did at or near gate 2 street, Kadena Air Base, on or between 000701 and 000915, wrongfully posses some hallucinogenic, and wrongfully use hallucinogenic mushrooms a schedule I controlled substance, while in Okinawa, Japan.
	Award:  Forfeiture of $563.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

000929:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse.

000929:	Applicant advised of his rights and having chosen not to consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

001016:	Substance Abuse Evaluation indicates applicant was seen in consultation by ABEC (AW/SW) R____, Substance Abuse Counselor.  Evaluation does reveal a pattern of illicit drug use, which may indicate a substance abuse disorder.
  
001220:	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 general under honorable conditions.

010103:	Commanding officer recommended 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 010124 general under 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).

Issue 1 states:  “(Equity Issue) Her violation of the UCMJ notwithstanding, this former member opines that her overall service record warrants a fully honorable discharge.”  The NDRB disagrees.  The applicant’s overall service includes her positive contributions as well as her misconduct.  The applicant’s misconduct, illegal drug use, significantly degrades from her positive contributions.  The Board found the General discharge more than equitably characterizes the applicant’s service.  Relief is denied.

Issue 2 states:  “(Equity Issue) This former member furthers requests that the Board include provision of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, is assessing the merits of this application.”  The Board disagrees.  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, subsequent to leaving the service.  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/A9221/A9439