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Docket No. ND03-00119

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

 ex-EM3, USN
Docket No. ND03-00119

Applicant’s Request

The application for discharge review, received 20021023, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030926.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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, as submitted

1.  Use Brief, Page 1, Paragraph 3, Sentences 2, 3, and 6.

He has demonstrated a consistent maturity level of a senior first class petty officer ready to advance to Chief Petty Officer.  Mr. (Applicant) has given over five solid years of dedicated Naval Service, a momentary lapse in judgment has cost him his career and he accepts that.  After five hard years of exemplary service living our “Core values” Mr. (Applicant) deserves to be consider for a General Discharge.

2.  My Discharge was inequitable because it was based on one isolated incident in 41 months of service onboard CVN-72.

3.  My discharge was inequitable because is was based on one momentary lapse in judgment.

4.  My discharge was inequitable because it does not justify the exemplary performance of my Naval Career.

Documentation

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

Applicant’s DD Form 214
Character reference, dated December 13, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19960209 – 19960611	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  19960612			Date of Discharge:  20011222

Length of Service (years, months, days):

	Active:    05  06  11
	Inactive:  None

Age at Entry:  17	Parental Consent	Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  75

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  4.00 (1)		OTA:  3.86

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, MUC (3), CGUCR, SSDR (2)

Days of Unauthorized Absence:  2

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:

970515:	NJP for violation of UCMJ, Article 92: Violate a lawful general regulation by wrongfully consuming an alcoholic beverage while under the age of twenty-one on 970510.
	Award: Forfeiture of $100 per month for 2 months, correctional custody for 30 days, reduction to EMFN.  No indication of appeal in the record.

991201:	Applicant to unauthorized absence 0715, 991201.

991204:	Applicant from unauthorized absence 0700, 991204 (2 days/surrendered).

011113:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 011105, tested positive for cocaine.

011117:	NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine on 011028.
	Award:  Forfeiture of $1053 per month for 2 months, restriction and extra duty for 45 days, reduction to EM3.  No indication of appeal in the record.

011127:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by CO’s NJP on 971115 for violation of UCMJ, Article 92 and misconduct due to drug abuse as evidenced by wrongful use of cocaine on 011028.

011127:	Applicant advised of his rights and having elected not to consult consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

011214:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse (use).

011217:	COMCRUDSEGRU THREE 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 20011222 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, 3 and 4.  The Applicant referenced a statement from a reference letter submitted on his behalf that states the Applicant had a lapse in judgment after five years of exemplary service and deserves a General (under Honorable conditions) discharge.

The Applicant’s record shows that he had above average performance and behavior marks, however, the Applicant was guilty of drug abuse and an Other Than Honorable discharge is equitable for misconduct.  The applicant’s Commanding Officer had the option of recommending a characterization of General (under Honorable conditions), but he did not.  In regards to the Naval Discharge Review Board, normally, to permit relief, an error or inequity must have occurred 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 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 sufficient documentation for the Board to consider.  Therefore, no relief will be granted.

Issue 2.  The Applicant states his discharge was based on one isolated incident in 41 months of service.

According to Navy regulations, drug abuse requires mandatory processing for separation.  The discharge was proper and equitable.  Relief 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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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 "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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