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Docket No. ND05-01435

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

FOR OFFICIAL USE ONLY

 ex-OS3, USN
Docket No. ND05-01435

Applicant’s Request

The application for discharge review was received on 20050901.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060504.  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 by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I believe I have served my debt back to the Service and Society.  Living as a single civilian mom is not easy with a bad background from the Military that could follow us for the rest of our lives.  I wish to go further with my career and not wondering if my DD-214 will hinder me from proceeding.”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19920826 - 19920901	COG
	Active:    USN	19920902 - 19960417	HON
		USN	19960418 - 20000728	HON

Period of Service Under Review:

Date of Enlistment:  20000729		Date of Discharge:  20021107

Length of Service (years, months, days):

	Active:    02  03  09  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  0 day
	Confinement:		  0 day

Age at Entry:  26

Years Contracted:  6

Education Level:  12				AFQT:  36

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)			Behavior:  2.5 (2)		OTA:  3.43

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon, Second Good Conduct Award for period ending 02Jan31, National Defense Service Medal (2), Sea Service Deployment Ribbon (2), Armed Forces Service Medal, Enlisted Surface Warfare Specialist

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events: 

000729:	Reenlisted this date for a term of 6 years.

020510:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 020506, tested positive for THC.

020620:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 112a: Wrongful use of controlled substance.
	Sentence: Forfeiture of $876.00, reduced to E-4.
	CA action 020701:  Sentence approved and ordered executed.  EAOS changed to 060728.
	
020624:	Applicant arrested by Norfolk Police Department and charged with point, hold, or brandish a firearm or an object similar in appearance to a firearm in such a manner so as to reasonably induce fear in the mind of another, or hold a firearm in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.  [Extracted from Commanding Officer’s letter dated 021003.]

020702:	Substance Abuse screening:  No evidence of ETOH/drug dependency.

020717:	Applicant found physically qualified for separation.

020820:	Civil Conviction:  General District Court, Criminal Division, Norfolk, VA for violation of charge dropped to simple assault on 020624.
Sentence:  Fine $500.00, court costs $255.00, jail for 60 days, (58 suspended), unsupervised probation for 2 years

021003:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by your Summary Court-Martial of 20 June 2002, misconduct due to commission of a serious offense as evidenced by your civilian conviction for simple assault on 20 August 2002, and misconduct due to civilian conviction as evidenced by your civilian conviction for simple assault on 20 August 2002.

021003:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

021003:	Commanding Officer, Fleet Combat Training Center Atlantic recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, misconduct due to commission of a serious offense, and misconduct due to civilian conviction.  Commanding Officer’s comments:  “(1) Through misconduct which includes drug abuse, OS3 D_(Applicant) has demonstrated an inability to adapt to the Navy’s environment or live up to our standards of performance and personal conduct.  Based upon this misconduct, I believe that OS3 D_(Applicant) has no potential for further naval service and recommend that she be separated with an Other Than Honorable discharge.
(2) Operations Specialist Third Class D_(Applicant) has been advised that she will be required to repay her bonus.  She acknowledged this requirement and stated that she is willing to repay that amount.  The final amount of repayment will be determined by Defense Finance Accounting Service upon their receipt of OS3 D_(Applicant)’s DD214.”

021022:	Commander, Navy Region, Mid-Atlantic 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 20021107 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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).  The Board presumed regularity in the conduct of governmental affairs (E).

The government enjoys a presumption of regularity in the conduct of its affairs.  The record copy of the notification of intended recommendation for discharge, dated 021003, contains a line that is unreadable. The least favorable characterization of service cannot be discerned because of the scanning process. The Board presumes that the entire original document was readable and that the least favorable characterization of service was under other than honorable conditions. The rest of the document is clearly legible. 

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 or inequity after a review of Applicant’s case.  Relief unwarranted.

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 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 post-service documentation for the Board to consider.  Relief inappropriate.

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 additional evidence related to this discharge.  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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a – wrongful use of controlled substances.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023