Author: CAP
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Docket No. ND03-00555

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

ex-GMGSR, USN
Docket No. ND03-00555

Applicant’s Request

The application for discharge review was received on 20030213.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040128.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My misconduct while I was in the Navy was serious, I realize and accept responsibility for my actions.  However, since I was discharged I have led a exemplary life.  I have, and am continuing to attend college, have completed two educational certificates and am a good husband, employee and father.

For these reasons I ask you for clemency and a upgrade to my discharge.  Thank you for your time and attention.”

Documentation

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

Educational certificate: MCSE
Educational certificate: CCNA
Letter of reference from employer, dated November 9, 2001
Letter of reference from spouse, dated January 2, 2003
Notification letter of acceptance into college, dated January 14, 2003 (e-mail)
College transcripts (6 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890324 - 890330	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890331		Date of Discharge:  910207

Length of Service (years, months, days):

	Active:    01  10  07
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  11			AFQT:  84/78

Highest Rate:  GMGSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*			Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No Marks Available for review

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

890405:	Applicant briefed on Navy's policy of drug and alcohol abuse.

890502:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Service directed urinalysis 890331.  DAPA found Applicant not dependent.  Commanding Officer recommended retention and Level I.  Comments: SNM tested positive for THC in the accession pipeline urinalysis.

900315:	Retention Warning: Advised of deficiency (Graduate of Level III alcohol rehabilitation treatment at ARD Great Lakes), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900502:	Applicant advised that he was identified as a drug abuser, through urinalysis testing.

900816:	NJP for violation of UCMJ, Article 134: Wrongfully and falsely alter his military identification card in words and figures as follows: “1966” vice “1970.”
	Award: Forfeiture of $150 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

900816:	Retention Warning: Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

901003:	Applicant completed formal treatment phase of rehabilitation program and directed to participate for 23 weeks in the aftercare program.

901115:	NJP for violation of UCMJ, Article 112A: Wrongfully possess a controlled substance on 901020, to wit: LSD.
	Award: Forfeiture of $362 per month for 2 months, restriction and extra duty for 45 days, reduction to GMGSR.  No indication of appeal in the record.

901116:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense and by reason of alcohol abuse rehabilitation failure.

901116:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

901128:	Drug and Alcohol Abuse Report: LSD possession, 1 to 3 times per week, ashore off duty.  Method of identification for this incident: Civilian police 901021.  Physician found Applicant dependent and recommended separation via VA hospital.  Commanding Officer recommended separation via VA hospital.  Comments:  Past military performance was average.  Adjudged as having no potential for future naval service.  Reduced to paygrade E-1 for this incident.

901128:	Medical evaluation for drug abuse found the Applicant to have a chronic drug/alcohol dependency.  Recommended Applicant attend a VA in-hospital therapy prior to separation.  

901203:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense, and by reason of alcohol abuse rehabilitation failure.

901211:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug possession.

901217:	Applicant elected to participate in a drug/alcohol rehabilitation program.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910207 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.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity 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, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that may be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offenses for which he was discharged.  Relief not warranted.

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.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective 
14 Jun 90 until 14 Aug 91, 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 "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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