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Docket No. ND04-00096

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

ex-AA, USN
Docket No. ND04-00096

Applicant’s Request

The application for discharge review was received on 20031017.  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 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 20040910. 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.  “My name is N_ R_ P_ (Applicant).  I was separated from the United States Navy almost a year ago.  I was awarded an OTH discharge, however I feel like this was not deserving.  I was originally charged with violation of Article 112a of the UCMJ.  The conclusion that the command came to was coerced out of me.  I was basically forced by my former command to admit to something that I did not do.  I voluntarily took a urinalysis and came back negative.  When I went in front of the Review Board, however, the persons on the board did not even consider my results.  I was repeatedly told that I was a liar and untrustworthy and that I was not fit to be in the Navy.

I am an excellent and hard worker.  I value everything the military has taught me.  I still use the tactics to this day.  I am working minimum wage jobs and I am trying to pay for school, debt, and rent.  My GI bill is not given to me because of my discharge type.  I would like for the Board to review my records and come to a fair and just decision.  I am also looking into the Naval Reserves.  I enjoy the military and I feel that the Navy is where I belong.”

Thank you for your time and patience.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000830 - 000905	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  000906		Date of Discharge:  021130

Length of Service (years, months, days):

	Active:    02  02  25
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  76

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)	Behavior:  2.00 (2)		OTA:  2.67

Military Decorations:  None

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

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:

020206:	NJP for violation for UCMJ, Article 92.  Failure to obey a lawful order.
		Awarded 30 days restriction.  [Extracted from evaluation dated 020807].

020807:	Admitted illegal drug use and implicated in distribution scheme.  Formal charges have been filed.  Applicant will be prosecuted under the Uniform Code of Military Justice. [Extracted from evaluation dated 020807].

020814:	NJP for violation of UCMJ, Article 112a:  Wrongful use, possession of a controlled substance, violation of UCMJ, Article 107: False official statements.
	Award:  Forfeiture of $619.00 per month for 2 months, restriction for 45 days, reduction to E-2.  No indication of appeal in the record.

021130:	Discharged under other than honorable conditions under the authority MILPERSMAN 1910-146 for reason of misconduct.  [Extracted from Applicant’s DD 214].

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021130 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, 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 government affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1. The Board found there is credible evidence in the record that the Applicant used illegal drugs.  The Applicant signed a 7 Aug 02 Evaluation Report in which he “admitted illegal drug abuse”.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  There is no credible evidence in the record, or submitted by the applicant, that substantiates his allegation that his admission of drug use was coerced.

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 two nonjudicial punishment proceedings of Articles 92, 107 and 112(A) of the UCMJ.  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.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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.  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 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 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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.