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Docket No. ND03-00522

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

 ex-RMSA, USN
Docket No. ND03-00522

Applicant’s Request

The application for discharge review was received on 20030211.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Nashville, TN.  The Applicant listed the American Legion as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040114.  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.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Nature of separation too harsh for offenses committed”

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

Documentation

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

Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970423 - 970702	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970703		Date of Discharge:  000107

Length of Service (years, months, days):

	Active:    02  06  05
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)	Behavior:  2.00 (2)		OTA:  2.63

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NATO Medal, AFEM, NUC

Days of Unauthorized Absence:  16

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:

990617:	Civil Conviction: Virginia Beach General District Court, Traffic Division for violation of Reckless driving on 981005
Sentence: Fine $100 plus court cost.

990812:	Civil Conviction: Norfolk General District Court, Traffic Division for violation of driving on suspended license and expired tags on 990630.
Sentence: Fine $250.00 plus court costs suspended and fine $25.00.

991019:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 991004, tested positive for THC.

991028:	NJP for violation of UCMJ, Article 86: Unauthorized absence on 0710, 990907 to 1145, 990923, violation of UCMJ, Article 112A: Wrongful use of cocaine.
	Award: Forfeiture of $538 per month for 2 months, restriction and extra duty for 45 days, reduction to RMSA.  No indication of appeal in the record.

991028:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to drug abuse.

991028:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

991108:	NJP for violation of UCMJ, Article 86 (6 specs): (1) Fail to go at time prescribed to appointed place of duty on1130, 991031, (2) Fail to go at time prescribed to appointed place of duty on 2000, 991031, (3) Fail to go at time prescribed to appointed place of duty on 1300 991103, (4) Fail to go at time prescribed to appointed place of duty on 0630, 991106, (5) Fail to go at time prescribed to appointed place of duty on 1745, 991106, (6) Fail to go at time prescribed to appointed place of duty on 1130, 991107.
	Award: Confinement on bread and water for 3 days.  No indication of appeal in the record.

991124:	NJP for violation of UCMJ, Article 92 (5 specs): No further information found in service record.
	Award: Bread and water for 3 days.  No indication of appeal in the record.  [Extracted from Evaluation Report and Counseling Record dated 000109.]

991203:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civilian conviction and misconduct due to drug abuse.

991207:	NJP for violation of UCMJ, Article 92 (2 specs): No further information found in service record.
	Award: Bread and water for 3 days.  No indication of appeal in the record.  [Extracted from Evaluation Report and Counseling Record dated 000109.]  No indication of appeal in the record.

991228:	COMCRUDESGRU TWELVE directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000107 under other than honorable conditions for misconduct due to drug abuse (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:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by two civilian convictions and four non-judicial punishments (NJP) one of which included a charge of illegal drug use.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated he was unsuitable for further service. Relief denied.

Issue 2:  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, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Applicant has not provided any verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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 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 "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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