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Docket No. ND03-00084

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

 ex-OMSN, USN
Docket No. ND03-00084

Applicant’s Request

The application for discharge review, received 20021017, requested that the characterization of service on the discharge be changed to honorable.  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 20030912.  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 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  My discharge was unfair and inequitable because of circumstances surrounding my being accused of offenses and subsequent discharge.  A full description and account of the entire ordeal which includes background information unavailable from a review of my record is attached.  Please see all supporting documentation.

Documentation

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

Copies of DD Form 214 (2)
Copies of Evaluation Report & Counseling Record (6 pages)
Statement from Applicant (3 pages).

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19891021 - 19900103	COG
	Active:   USN 			19900103 - 19940103	HON

Period of Service Under Review:

Date of Enlistment:  19960516		Date of Discharge:  19980504

Length of Service (years, months, days):

	Active:    01  11 19
	Inactive:  None

Age at Entry:  24			Years Contracted:  4 

Education Level:  12			AFQT:  61

Highest Rate:  QM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR(3^RD), AFSM, AFEM, NDSM, NUC, SASM, KLM, 

Days of Unauthorized Absence:  None

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

960516:	Reenlisted at MEPS for 4 years.

980408:	NAVDRUGLAB [JACKSONVILLE, FL], reported applicant’s urine sample, received 980402, tested positive for [THC].

980422:	NJP for violation of UCMJ, Article 92 (3 Specs): Who knew of his duties on board USS JOHN F KENNEDY, at sea, at approximately 1730, 980407; 0330, 980408; and 0330, 980411, was derelict in the performance of those duties in that he willfully failed to remain awake on watch, as it was his duty to do; violation of UCMJ Article 134: Did, at NCISFO, Mayport, FL on or about 980402 in a sworn statement to a special agent, wrongfully and unlawfully make and subscribe under lawful oath a false statement in substance as follows: “Since coming back in the Navy, I have not used any illegal drugs,” or words to that effect, which statement he did not then believe to be true.
	Award:  Forfeiture of $615.00 pay per month for 2 month(1 months suspended for 6 months), restriction and extra duty for 45 days (10 days suspended for 6 months), reduction to E-2.  No indication of appeal in the record.

980423:	Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

980423:	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.

980423:	Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 19980504 general under honorable conditions for misconduct due to commission of a serious offense (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, D, and E).

Issue 1.  The Applicant states his discharge was unfair and inequitable and he provided an account of the circumstances surrounding his discharge.

The facts of the case show that the Applicant tested positive for THC during a command urinalysis screening and he was subsequently discharged.  In accordance with Navy regulations, drug abuse requires mandatory processing for separation.  The discharge was proper and equitable.

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No errors or inequities were discovered in the execution of the Applicant’s discharge.  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.  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 can be considered.  Examples of documentation to forward to the Board for consideration of credible post-service conduct include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  At this time, the applicant has not provided any documentation for the Board to consider.  Therefore, relief is denied.

The Applicant is reminded that he 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.  Representation at a personal appearance hearing is recommended but not required.
 
Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.
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.

E.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92 (dereliction of duty), and Article 134 (false swearing), if adjudged at a Special or General Court Martial.

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.
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