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Docket No. ND03-01477

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

ex-ENFN, USN
Docket No. ND03-01477

Applicant’s Request

The application for discharge review was received on 20030910.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293, however, subsequently, he listed the Disabled American Veterans as his representative.

Decision

A documentary review was conducted in Washington, D.C. on 20040812.  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 stated

Applicant’s issues, as stated on the application:

1.  “Dear Discharge Review Board:

The following issues are the reasons I believe my discharge should be upgraded to at least a general discharge.  If you disagree, please explain in detail why you disagree.  The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.

1.  My average conduct and efficiency ratings/behavior and proficiency marks were all good from the beginning of my enlistment.  Letters of appreciation and copies of evaluations attached.

2.  I received awards, decorations and letters of recommendation.

3.  I had combat service.

4.  My records will show that I was an above average sailor.

5.  I was unable to serve because of my youth and immaturity.  It was my first and only offense and it occurred while I was attending a party and also under the influence of alcohol.  I no longer drink since my discharge.

6.  I feel my command was unfair in my discharge process.  One, because I was threatened early on with a court martial, and Second, the ship was about to be deployed therefore I was abruptly and quickly discharged.

7.  I have been a good citizen since my discharge.  I was able to gain employment immediately.

8.  All my evaluations were satisfactory or higher.  Even my last evaluation only months before the incident I received an above standards review.

Thank you for your time and consideration.  I hope to be hearing from you soon.

S_ S. S_
[signed]”

Issues submitted by Applicant’s representative Disabled American Veterans:

1.  “Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable (OTH) discharge to that of Honorable.

The FSM served on active service from September 9, 1997 to August 16, 2000 at which time he was discharged due to Misconduct. 

The FSM contends the current discharge is improper because his service was inhibited by his age and immaturity. The use of the un-controlled substance was incurred during a party while he was under the influence of alcohol. He has also submitted letters of commendation, which if reviewed with his proficiency reports will reflect a good sailor, with combat service.

Additionally, he maintains that he was not treated fairly by his Command, nor given the opportunity for rehabilitation. He was rushed to an Administrative Discharge because his ship was to be deployed and repeatedly threatened with a Court Martial.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

                                              Respectfully,

                                              K_ L. G_
                                              National Service Officer

Documentation

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

Copy of DD Form 214
Letter of Appreciation dated 31 August 1997
Letter of Appreciation dated 22 October 1999
Letter of Appreciation dated 02 January 2000
Evaluation Report 98JUL16 to 98OCT15
Evaluation Report 98OCT16 to 98JUL05
Evaluation Report 99JAN26 to 99JUN15
Evaluation Report 99JUN16 to 00JUN15
Copy of DD Form 149
Applicant letter detailing representation by Disabled American Veterans, undated

PART II - SUMMARY OF SERVICE
Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	970131 - 970908	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  970909		Date of Discharge:  000816

Length of Service (years, months, days):

	Active:    02  11  08
	Inactive:  None

Age at Entry:  19			Years Contracted:  6 (24 month extension)

Education Level:  12			AFQT:  63

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.25 (4)		OTA:  3.086

Military Decorations:  None

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

Days of Unauthorized Absence:  None

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:

000621:	NJP for violation of UCMJ, Article 112a:  wrongful use of a controlled substance,
	Award:  Forfeiture of $100.00 per month for 2 month(s), restriction and extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.

Complete Discharge Package Unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000816 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the available records, supporting document, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1:  The Applicant contends that he served the United States well and he is entitled to an upgrade.  In support of his position, Applicant cites his combat service, his conduct and efficiency ratings, and his decorations and letters of recommendation.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for an admitted violation of the UCMJ Article 112a illegal substance abuse.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Characterization of service can be based upon one incident that constitutes a significant departure from the conduct expected from members of the naval service, no matter how isolated that incident is.  As such, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Relief denied.

Applicant further alleges he was treated unfairly by his command in that they abruptly discharged him due to an impending deployment and threatened him with court-martial.  These allegations are without merit.  Nothing in the record suggests impropriety or inequity on the part of the separation authority or the command and Applicant has provided no concrete evidence to support his claims.  As such, this Board finds that Applicant has failed to rebut the presumption of regularity in the conduct of governmental affairs.  Relief denied.

Applicant further cites post service good conduct as a basis for an upgrade of his discharge.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  For these post service factors to receive any meaningful consideration by the Board, they must be supported by credible, verifiable documentary evidence submitted by the Applicant.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle (if appropriate) and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 27, effective 27 March 2000 - 11 Feb 2001, 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 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

C.  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.

D.  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.  

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.